PART A: GENERAL REQUIREMENTS, RULES AND ... PROJECTS RFP PART A - GENERAL...3.6 Appendix F2B Stage 2...
Transcript of PART A: GENERAL REQUIREMENTS, RULES AND ... PROJECTS RFP PART A - GENERAL...3.6 Appendix F2B Stage 2...
6640108_1 1
21/08/2013
21 August 2013
TENDER NO: 004/13/14
The Republic of South Africa
Department of Energy
REQUEST FOR QUALIFICATION AND PROPOSALS FOR NEW GENERATION
CAPACITY UNDER THE SMALL PROJECTS IPP PROCUREMENT PROGRAMME
PART A: GENERAL REQUIREMENTS, RULES AND PROVISIONS
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LIST OF DOCUMENTS COMPRISING THE RFP
PART A: General Requirements, Rules and Provisions
PART B: Stage 1 Qualification Criteria
PART C: Stage 2 Qualification Criteria
PART D: Stage 2 Evaluation Criteria
VOLUMES
1. Volume 1
1.1 Part 1 Legal Notices, Government Policies and Background
Documents
1.1.1 Schedule 1 Bid Notice
1.1.2 Schedule 2 IRP 2010
1.1.3 Schedule 3A First Determination
1.1.4 Schedule 3B Second Determination
1.1.5 Schedule 4 NERSA's Concurrence Letter
1.1.6 Schedule 5 Exemption from the Preferential Procurement Policy
Framework Act
1.1.7 Schedule 6 General Overview of Environmental and Land Use
Consents
1.1.8 Schedule 7 Procedure for obtaining non-binding confirmation by
DWA of water availability on request from bidders in the
Small Projects IPP Procurement Programme
1.1.9 Schedule 8 National Policy on the Preservation of Agricultural Land
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1.1.10 Schedule 9 Regulations for the Evaluation and Review of
Applications pertaining to Wind Farming on Agricultural
Land
1.1.11 Schedule 10 Pro-Forma Municipal Distribution Agreement
1.1.12 Schedule 11 Pro-Forma Municipal Direct Agreement
1.1.13 Schedule 12 Pro-Forma Self Build Agreement
1.2 Part 2 Stage 1 Bid Submission Returnable Schedules
1.2.1 Schedule 13 Stage 1 Bid Submission Covering Letter
1.2.2 Schedule 14 Declaration of Bidder
1.2.3 Schedule 15 Letter of Intent
1.2.4 Schedule 16 Confidentiality Undertaking
1.2.5 Schedule 17 Resolution of Lead Member
1.2.6 Schedule 18 Resolution of each Member
1.2.7 Schedule 19 Declaration of Interest, Litigation and Past supply Chain
Practices Form
1.2.8 Schedule 20 Standard Response Form for Stage 1 Legal Criteria
1.3 Part 3 Stage 2 Bid Submission Returnable Schedules
1.3.1 Schedule 21 Stage 2 Bid Submission Covering Letter
1.3.2 Schedule 22 Declaration of Selected Bidder
1.3.3 Schedule 23 Letter of Intent
1.3.4 Schedule 24 Resolution of each Member
1.3.5 Schedule 25 Resolution of Lead Member
1.3.6 Schedule 26 Form of Preferred Bidder Guarantee
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1.3.7 Schedule 27 Tax Clearance Requirements
1.3.8 Schedule 28 Declaration in respect of payment of Success Payments
1.3.9 Schedule 29 Volume 1 Part 1 Schedule 6 Return
1.3.10 Schedule 30 Declaration of Interest, Litigation and Past supply Chain
Practices Form
1.3.11 Schedule 31 Confirmation of an Electricity Supply Agreement
2. Volume 2 Legal Agreements
2.1 Appendix A PPA for each Technology
2.2 Appendix B Direct Agreement
2.3 Appendix C Implementation Agreement
2.4 Appendix D Eskom Distribution Agreement
2.5 Appendix E Connection Direct Agreement
3. Volume 3 Technical Requirements
3.1 Appendix F1A Stage 1 Onshore Wind Forms
3.2 Appendix F1B Stage 2 Onshore Wind Forms
3.3 Appendix F1C Stage 1 Onshore Wind Evaluation matrix – available for
download on the Small Projects IPP Website
3.4 Appendix F1D Stage 2 Onshore Wind Evaluation matrix – available for
download on the Small Projects IPP Website
3.5 Appendix F2A Stage 1 Solar Photovoltaic Forms
3.6 Appendix F2B Stage 2 Solar Photovoltaic Forms
3.7 Appendix F2C Stage 1 Solar Photovoltaic Evaluation matrix – available for
download on the Small Projects IPP Website
3.8 Appendix F2D Stage 2 Solar Photovoltaic Evaluation matrix – available for
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download on the Small Projects IPP Website
3.9 Appendix F3A Stage 1 Biomass Forms
3.10 Appendix F3B Stage 2 Biomass Forms
3.11 Appendix F3C Stage 1 Biomass Evaluation matrix – available for
download on the Small Projects IPP Website
3.12 Appendix F3D Stage 2 Biomass Evaluation matrix – available for
download on the Small Projects IPP Website
3.13 Appendix F4A Stage 1 Biogas Forms
3.14 Appendix F4B Stage 2 Biogas Forms
3.15 Appendix F4C Stage 1 Biogas Evaluation matrix – available for download
on the Small Projects IPP Website
3.16 Appendix F4D Stage 2 Biogas Evaluation matrix – available for download
on the Small Projects IPP Website
3.17 Appendix F5A Stage 1 Landfill Gas Forms
3.18 Appendix F5B Stage 2 Landfill Gas Forms
3.19 Appendix F5C Stage 1 Landfill Gas Evaluation matrix – available for
download on the Small Projects IPP Website
3.20 Appendix F5D Stage 2 Landfill Gas Evaluation matrix – available for
download on the Small Projects IPP Website
4. Volume 4 Financial Requirements
4.1 Appendix G1 Letter of Confirmation in respect of availability of equity
funding
4.2 Appendix G2 Letter of Support Template from Provider(s) of Equity
Finance
4.3 Appendix G3 Letter of Support Template from Lender (from Each Lender
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4.4 Appendix G4 Financial Model(s) Structure and Assumptions
4.5 Appendix G5 Front Sheet Template for Financial Model, Technical
Information and Economic Development Information
5. Volume 5 Economic Development Requirements
5.1 Appendix H Economic Development Goals and Instructions to Bidders
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Table of Contents
Page No
PART A: GENERAL REQUIREMENTS, RULES AND PROVISIONS ......................................... 9
1. Disclaimer ................................................................................................................. 9
2. Definitions and Interpretation .................................................................................. 11
3. Invitation ................................................................................................................. 33
4. Background to the Small Projects IPP Procurement Programme ............................ 33
5. Small Projects IPP Procurement Programme Description ....................................... 39
6. The Department's Rights ........................................................................................ 56
7. Structure of the RFP ............................................................................................... 57
8. Purpose of RFP ...................................................................................................... 59
9. Structure of the Small Projects IPP Procurement Programme ................................ 61
10. Timetable for Small Projects IPP Procurement Programme .................................... 68
11. Governing Law, Competition and other Statutory Requirements ............................. 75
12. Small Projects IPP Procurement Programme Economic Development Objectives and Requirements .................................................................................................. 76
13. Environmental Consents and Land Use Consent Considerations ........................... 85
14. Connection to, and use of, the Distribution System ................................................. 87
15. General Bid Rules .................................................................................................. 91
16. Non-Eligible Persons .............................................................................................. 93
17. Use of Transaction Advisors by the Department and the Bidders ........................... 96
18. Acknowledgment of the Law ................................................................................. 100
19. Legal Personality of Bidder and Changes to a Bid Response ............................... 102
20. Authorisation of the Department and the Buyer .................................................... 103
21. Separate Bid Response for each Project and sharing of infrastructure ................. 104
22. Confidentiality ....................................................................................................... 105
23. Bid Security, Development Fee and Limitation on payment of Success Payments 107
24. Corrupt Gifts and Payments .................................................................................. 111
25. No Contract .......................................................................................................... 112
26. No Collusion ......................................................................................................... 112
27. Disqualification ..................................................................................................... 113
28. Loss of Selected Bidder and Preferred Bidder status ............................................ 113
29. Contact Policy ....................................................................................................... 114
30. Time for requests and clarifications ...................................................................... 117
31. Requests and responses to requests .................................................................... 117
32. Bidders' Conferences ........................................................................................... 118
33. Status of response ................................................................................................ 118
34. Submission of Bid Response ................................................................................ 119
35. Extension of Bid Submission Date ........................................................................ 119
36. Copies of Bid Response ....................................................................................... 120
37. Late and Incomplete Submissions ........................................................................ 120
38. Bid Validity ............................................................................................................ 120
39. Extension of Bid Validity Period ............................................................................ 120
40. Declaration of Bidder and Letter of Intent .............................................................. 121
41. Acceptance and Revision of the PPA, Implementation Agreement, Direct Agreement and Connection Agreements .............................................................. 121
42. Change in Legal Requirements ............................................................................ 122
43. Briefing Notes and Changes to Bid Process ......................................................... 122
44. Cost of Bidding ..................................................................................................... 123
45. Bidder's Due Diligence.......................................................................................... 124
46. Inconsistencies ..................................................................................................... 124
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47. Incorrect or misleading information ....................................................................... 124
48. Opening of Bid Responses ................................................................................... 125
49. Bid Response Rejection ....................................................................................... 125
50. Disputes relating to Bid Process ........................................................................... 125
51. Selection of Preferred Bidders .............................................................................. 125
52. Format of the Bid Response ................................................................................. 125
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PART A: GENERAL REQUIREMENTS, RULES AND PROVISIONS
1. Disclaimer
1.1 While all reasonable care has been taken in preparing this document, the
information contained in it does not purport to be comprehensive or to have been
verified by the Department of Energy of the Government of the Republic of South
Africa ("the Department") or any other department of the Government of the
Republic of South Africa ("the Government"), any of its officers, employees,
servants, agents, advisors or any other person. Accordingly, neither the
Department nor any of its advisors accept any liability or responsibility for the
adequacy, accuracy or completeness of any of the information or opinions stated
herein.
1.2 Save where expressly stipulated otherwise, no representation or warranty
(whether express or implied) is or will be given by the Department or any of its
officers, employees, servants, agents, advisors or any other person with respect
to the information or opinions contained in this RFP, or in relation to any Briefing
Notes issued in relation to this RFP or the Small Projects IPP Procurement
Programme.
1.3 The Department reserves the right to amend, modify or withdraw this RFP or any
part of it, or to terminate or amend any of the procedures, procurement processes
or requirements detailed in this RFP during the conduct of the Small Projects IPP
Procurement Programme, at any time, without prior notice and without liability to
compensate or reimburse any person pursuant to such amendment, modification,
withdrawal or termination.
1.4 The Department reserves the right to terminate or amend the Small Projects IPP
Procurement Programme, at any time, without prior notice and without liability to
compensate or reimburse any person pursuant to such termination or
amendment.
1.5 The terms and conditions set out in this RFP are stipulated for the express
benefit of the Department and, save as expressly stated to the contrary, may be
waived at the Department’s sole discretion at any time. The Department
reserves the right to adopt any proposal made by any person responding to this
RFP at any time and to include such proposal in any documents which may or
may not be made available at any stage of the Small Projects IPP Procurement
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Programme to any other persons responding to this RFP, without the obligation
or liability to pay any compensation or reimbursement of any nature to any
person pursuant to such adoption.
1.6 This RFP is provided solely for the purpose set out in this document and is not
intended to form any part or basis of any investment decisions by the Bidder, its
Members or its Lenders. Each person to whom this RFP is made available must
make its own independent assessment of the Project in respect of which it
intends submitting a Bid Response, taking such professional advice as it deems
necessary.
1.7 The Department has engaged consultants in respect of the Small Projects IPP
Procurement Programme and this RFP, who are acting solely as advisors to the
Department to assist the Department in the Small Projects IPP Procurement
Programme and, accordingly, will not be responsible or owe a duty of care to any
person other than the Department in respect of this RFP or the Small Projects
IPP Procurement Programme. The Transaction Advisors shall not nor shall any
legal advisor, or advisor to the Department in relation to the Small Projects IPP
Procurement Programme or this RFP, provide any opinion to or for the benefit of
any, Bidder, Members, Contractors or any Lender, in their capacity as advisor to
the Department.
1.8 No Bidder, its Members, Contractors or its Lenders shall have any claim against
the Department, its officers, employees, servants, agents or Transaction Advisors
arising out of any matter relating to the Small Projects IPP Procurement
Programme or this RFP of any nature whatsoever where such claim is based on
any act or omission by the Department, or any of its officers, employees,
servants, agents or Transactions Advisors of any nature whatsoever, under any
circumstances whatsoever, or such claim is based on the content of, or any
omission from, this document of any nature whatsoever.
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2. Definitions and Interpretation
2.1 In this RFP, except as otherwise defined herein, and except where the context
requires otherwise, words and expressions which are defined in the PPA or the
Implementation Agreement shall have the same meanings when used in this
RFP. In this RFP, the following terms shall have the following meanings:
2.1.1 "Advisors" - any advisors to any Bidders, Members,
Lenders, Contractors or any other participants
in any Bid Responses;
2.1.2 "Appendix" - any appendix attached to this RFP;
2.1.3 "Amendment Agreement to the Electricity Supply Agreement" - the agreement which amends the Electricity
Supply Agreement entered into between
Eskom and the relevant municipal Distributor
in order to provide for the sale of electrical
energy generated by the Facility in addition to
the electricity supplied by Eskom to the
municipal Distributor in terms of the Electricity
Supply Agreement and to regulate the
reconciliation of payments associated
therewith, which agreement must be entered
into between Eskom and the relevant
municipal Distributor prior to signature of the
PPA by Eskom;
2.1.4 "BBBEE Recognition Levels" - the Contributor Status Level of a Measured
Entity, as defined in the Economic
Development Requirements in Volume 5;
2.1.5 "Bidder" - any entity or consortium that submits a Bid
Response, which must be either a Project
Company or a consortium of legal entities, all
of whom shall become Shareholders in a
Project Company;
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2.1.6 "Bid Notice" - the notice published by the Department
inviting potential bidders to acquire the RFP
and submit Bid Responses under this Small
Projects IPP Procurement Programme,
included in this RFP as Schedule 1 (Bid
Notice) in Volume 1, Part 1 (Legal Notices,
Government Policies and Background
Documents);
2.1.7 "Bid Response" - any bid submitted by a Bidder in response to
the invitation contained in this RFP,
comprising a Stage 1 Bid Submission and or a
Stage 2 Bid Submission, as the case may be;
2.1.8 “Bid Registration Date” the date by which the Department must be
notified that a Bidder intends submitting a Bid
Submission for a particular Bid Submission
Date, which date is set out in clause 10
(Timetable for IPP Procurement Programme);
2.1.9 "Bid Response" - any bid submitted by a Bidder in response to
the invitation contained in this RFP,
comprising a Stage 1 Bid Submission and or a
Stage 2 Bid Submission, as the case may be;
2.1.10 "Bid Submission Date " - the date identified as the bid submission date
for a Bid Submission Phase in accordance
with clauses 10 (Timetable for Small Projects
IPP Procurement Programme) and 34
(Submission of Bid Response) of this RFP or
by Briefing Note for all Bid Submission
Phases;
2.1.11 "Bid Submission Phase" - a period identified as a bid submission phase
in clause 10 (Timetable for Small Projects IPP
Procurement Programme) of this RFP being
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either a Stage 1 Bid Submission Phase, or a
Stage 2 Bid Submission Phase;
2.1.12 "Bid Validity Period" - the period identified as the Bid Validity Period
in clause 38 (Bid Validity) of this RFP;
2.1.13 "Black Enterprise" - a legal entity with 50.1% or more of its equity
owned by Black People and which is
Controlled by Black People;
2.1.14 "Black People" - refers to natural persons who are Africans,
Coloureds and Indians, limited to those who
are Citizens;
2.1.15 "Briefing Note" - any document issued in writing by the
Department that amends or supplements this
RFP in any way. These notes shall be
consecutively numbered in the order in which
they are issued;
2.1.16 "Business Day" - any day other than a Saturday, Sunday or
gazetted national public holiday in the
Republic of South Africa;
2.1.17 "Buyer" - the legal entity designated by the Minister in
the Determinations as the buyer of Energy
from Sellers in terms of PPAs entered into
pursuant to the Small Projects IPP
Procurement Programme;
2.1.18 "Change in Control" - means any change whatsoever in Control (as
defined in the Implementation Agreement),
whether effected directly or indirectly;
2.1.19 "Citizens" means people who have obtained citizenship
of the Republic of South Africa by birth,
descent or naturalisation in terms of the South
African Citizenship Act, 88 of 1995;
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2.1.20 "Companies Acts" - the Companies Act, 61 of 1973, as amended
from time to time and, the Companies Act,
71 of 2008, as amended from time to time;
2.1.21 "Company" - a private company incorporated in the
Republic of South Africa in terms of the
Companies Acts;
2.1.22 "Connection Agreements" - the Distribution Agreement and the
Connection Direct Agreement (excluding the
Municipal Distribution Agreement and the
Municipal Direct Agreement);
2.1.23 "Connection Direct Agreement" - the direct agreement entered into (or to be
entered into) between the Seller, the
Distributor and the Lenders (or their agent) in
relation to the Distribution Agreement
provided in Volume 2 (Legal Agreements) of
this RFP;
2.1.24 "Consents" - means all consents, permits, clearances,
authorisations, approvals, rulings, exemptions,
registrations, filings, decisions, licences,
required to be issued by or made with any
Responsible Authority in connection with the
performance of any of the Construction,
Operation and maintenance of the Facility by
the Project Company;
2.1.25 "Constitutional Documents" - in respect of any person at any time, the then
current and up-to-date constitutional
documents of such person at such time
(including, to the extent applicable,
memorandum and articles of association,
certificate of incorporation, certificate to
commence business, certificate of change of
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name, memorandum of incorporation, notice
of incorporation, registration certificate and
notice of amendment);
2.1.26 "Contributor Status Level" - as the term is defined in the Implementation
Agreement provided in Appendix C
(Implementation Agreement) in Volume 2
(Legal Agreements) of this RFP;
2.1.27 "DBSA" - the Development Bank of Southern Africa
Limited, as governed by the Development
Bank of South Africa Act, 13 of 1997;
2.1.28 "Department" - the Department of Energy of the Government
of the Republic of South Africa or any
successor department designated by the
Government of the Republic of South Africa
from time to time;
2.1.29 "Determinations" - the First Determination and the Second
Determination, collectively;
2.1.30 "Development Fee" - the fee payable by the Project Company of a
Preferred Bidder to the Department in
accordance with the provisions of clause 23.4
(Development Fee) of this Part A (General
Requirements, Rules and Provisions);
2.1.31 "Direct Agreement" - the direct agreement entered into (or to be
entered into) between the Buyer, the Seller,
the Department and the Lenders (or their
agent) in relation to the PPA and the
Implementation Agreement, provided in
Appendix B (Direct Agreement) of Volume 2
(Legal Agreements) of this RFP;
2.1.32 "DPE" - the Department of Public Enterprises of the
Government of the Republic of South Africa or
any successor department designated by the
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Government of the Republic of South Africa
from time to time;
2.1.33 "DTI" - the Department of Trade and Industry of the
Government of the Republic of South Africa or
any successor department designated by the
Government of the Republic of South Africa
from time to time;
2.1.34 "DWA" - the Department of Water Affairs of the
Government of the Republic of South Africa
or any successor department designated by
the Government of the Republic of South
Africa from time to time;
2.1.35 "Economic Development Elements" - each of the Job Creation, Local Content,
Ownership, Management Control, Preferential
Procurement, Enterprise Development, SME
Participation and Socio-Economic
Development elements of Economic
Development (as those terms are defined in
Volume 5 (Economic Development
Requirements);
2.1.36 "Economic Development Scorecard" - the scorecard containing the targets of the
Department in relation to Economic
Development, which is annexed to Volume 4
(Financial Requirements) as Appendix G5-9
(Economic Development Scorecard) of this
RFP;
2.1.37 "Economic Development Information Sheet" - the information sheet to be completed by the
Bidders to indicate their committed
percentage and, where applicable, quantum
levels in relation to Economic Development, in
response to the Economic Development
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Scorecard, annexed to Volume 4 (Financial
Requirements) as Appendix G5-8 (Economic
Development Information Sheet) of this RFP;
2.1.38 "Equity Finance" - funding to be provided to the Project
Company by its Shareholders either by way of
share capital or subordinated debt;
2.1.39 "Electricity Regulation Act" - the Electricity Regulation Act, 4 of 2006, as
amended from time to time;
2.1.40 "Electricity Supply Agreement" - the agreement entered into or to be entered
into between Eskom and the relevant
municipal Distributor in whose licensed area
of supply the Bidder's Facility will connect to
the Municipal Distribution System, which
agreement regulates the supply of electricity
in bulk for municipal purposes by Eskom to
the municipal Distributor for the purpose of
distribution of that electricity to consumers
within the municipal Distributor's licensed
area of supply;
2.1.41 "Enterprise Development" - initiatives (which include monetary and non-
monetary initiatives) carried out by a
Measured Entity to assist with a view to
accelerate the development and sustainability
of other enterprises, financial and operation
independence of other enterprises;
2.1.42 "Entities" - a natural or juristic person conducting a
business, trade or profession in the Republic
of South Africa;
2.1.43 "Environmental Consents" - any consents, licences, authorisations,
permissions or approvals required from any
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organ of state in the local, provincial or
national sphere of government or any
regulatory agency required in terms of any
environmental law or heritage law for the
development, Construction or Operation of the
Facility;
2.1.44 "Eskom" - Eskom Holdings SOC Limited, with
registration number 2002/015527/06, as
incorporated pursuant to the Eskom
Conversion Act, 13 of 2001;
2.1.45 "Eskom Distribution Agreement" - the agreement to be entered into between the
Project Company of a Preferred Bidder and
the Eskom in respect of the physical
connection of the Units of the Project
Company's Facility to the Eskom Distribution
System, included in Volume 2 of this RFP
(Legal Agreements) as Appendix D;
2.1.46 "Eskom Distribution
System" - Eskom's network infrastructure consisting of
assets operated at a nominal voltage of
132 kV or less;
2.1.47 "Expected Contracted Capacity" - the Contracted Capacity that the Bidder
expects that its Project will have at the
relevant Stage 2 Bid Submission Date based
on the Project information available and
reasonable assumptions made at the time of
the relevant Stage 1 Bid Submission Date;
2.1.48 "Financial Advisor" - the firm or firms advising a Bidder on the
raising of debt and Equity Finance in respect
of its Bid Response and the Project;
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2.1.49 "Financial Close" - the Effective Date of the Implementation
Agreement;
2.1.50 “Financial Model” - the financial model or models that meet the
requirements of clause 2.5.4 (Financial
Models) of Part C (Stage 2 Qualification
Criteria) of this RFP;
2.1.51 "First Determination" - the determination made by the Minister on 1
August 2011, pursuant to section 34 of the
Electricity Regulation Act, provided in
Schedule 3A (First Determination) of Volume
1, Part 1 (Legal Notices, Government Policies
and Background Documents) of this RFP;
2.1.52 "First Stage 1 Bid Submission Date" - the date identified as the first Stage 1 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 14 October 2013;
2.1.53 "First Stage 2 Bid Submission Date" - the date identified as the first Stage 2 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 14 April 2014;
2.1.54 "Fourth Stage 1 Bid Submission Date" - the date identified as the fourth Stage 1 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 9 February 2015;
2.1.55 "Fourth Stage 2 Bid Submission Date" - the date provisionally identified as the fourth
Stage 2 Bid Submission Date in clause 10
(Timetable for Small Projects IPP
20
Procurement Programme) and clause 34
(Submission of Bid Response) of this RFP,
namely 21 March 2016;
2.1.56 "Government" - the Government of the Republic of South
Africa, and any of its departments, agencies
or other entities that it manages or controls;
2.1.57 "Grid Provider" - a Distributor, being either Eskom or a
municipality;
2.1.58 "IDC" - the Industrial Development Corporation of
South Africa Limited, a corporation
established under Section 2 of the Industrial
Development Corporation Act, 22 of 1940;
2.1.59 "Implementation Agreement" - the implementation agreement to be entered
into between the Seller and the Department,
provided in Appendix C (Implementation
Agreement) in Volume 2 (Legal Agreements)
of this RFP;
2.1.60 "IPP Procurement Programme" - the procurement programme being conducted
in terms of the Response for Qualification and
Proposals issued by the Department on 3
August 2011 under tender number
DOE/001/2011/2012;
2.1.61 "IRP 2010" - the Integrated Resource Plan 2010 issued by
the Minister of Energy under Notice No 400
dated 6 May 2011 in Government Gazette
34263, pursuant to the Electricity Regulation
Act attached to this RFP as Schedule 2 (IRP
2010) of Volume 1, Part 1 (Legal Notices,
Government Policies and Background
Documents);
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2.1.62 "IRR" - the real post tax rate of return which a holder
of equity in the Project Company is forecast,
in the Financial Models applicable at the
relevant Bid Submission Date, to achieve on
its investment in equity over the term of the
PPA;
2.1.63 "Land Use Consents" - any consents, authorisations, permissions or
approvals required from any organ of state in
the local, provincial or national sphere of
government or any regulatory agency required
in terms of any land use law for the
development, Construction or Operation of the
Facility;
2.1.64 "Lead Member" - a Member (which is a legal entity) of a Bidder
that is a consortium, which has been
appointed by the other Members to take the
lead in the preparation of that Bidder's Bid
Response and to submit the Bid Response on
behalf of the Bidder and to bind the Bidder to
the terms of the Bid Response;
2.1.65 "Legal Advisor" - the law firm or firms or a Bidder's internal legal
advisor advising a Bidder in respect of its Bid
Response and, if that Bidder becomes a
Preferred Bidder, in respect of the negotiation
of the Bidder's contractual arrangements and
Project Documents with, inter alia, its
Members, Contractors, equipment suppliers
and Lenders (if any);
2.1.66 "Lender" - any financier that is party to a term sheet that
is submitted by a Bidder as part of its Bid
Response for the provision of senior or
mezzanine debt to a Project;
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2.1.67 "Local Community" - local community, as the term is defined in the
Implementation Agreement provided in
Appendix C (Implementation Agreement) in
Volume 2 (Legal Agreements) of this RFP;
2.1.68 "Measured Entity" - an entity, including the Seller and or
Contractors, which is subject to measurement
in respect of any one or more of the Economic
Development Elements;
2.1.69 "Member" - in relation to any Bidder, any legal entity and
or natural person which will become a
Shareholder (either itself or through an
intermediary entity) once the Project Company
is incorporated, and if the Project Company
has already been incorporated, then any
Shareholder;
2.1.70 "Minister" - the Minister of the Department, from time to
time;
2.1.71 "Municipal Direct Agreement" - the pro-forma direct agreement entered into
(or to be entered into) between the municipal
Distributor, the Seller and the Lenders (or their
agent) in relation to the Municipal Distribution
Agreement in the form provided in Schedule
11 (Pro-forma Municipal Direct Agreement) of
Volume 1, Part 1 (Legal Notices, Government
Policies and Background Documents) of this
RFP;
2.1.72 "Municipal Distribution Agreement" - the pro-forma agreement to be entered into
between the Project Company of a Preferred
Bidder and the relevant municipality in respect
of the physical connection of the Units of the
Project Company's Facility to the relevant
Municipal Distribution System in the form
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provided in Schedule 10 (Pro-forma Municipal
Distribution Agreement) of Volume 1, Part 1
(Legal Notices, Government Policies and
Background Documents) of this RFP;
2.1.73 "Municipal Distribution System" - the municipality’s network infrastructure
consisting of assets operated at a nominal
voltage of 132 kV or less;
2.1.74 "MW" - means megawatts;
2.1.75 "National Treasury" - has the meaning ascribed to it in the PFMA;
2.1.76 "NEMA" - the National Environmental Management Act,
107 of 1998;
2.1.77 "NERSA" - the National Energy Regulator of South Africa,
established pursuant to Section 3 of the
National Energy Regulator Act, 40 of 2004;
2.1.78 "New Gen Regulations"- the Electricity Regulations on New Generation
Capacity published under GNR 399 in
Government Gazette 34262 of 4 May 2011, in
terms of section 35(4) of the Electricity
Regulation Act;
2.1.79 "PFMA" - the Public Finance Management Act, 1 of
1999;
2.1.80 "PPA" - the power purchase agreement to be entered
into between a Project Company, as the
Seller, and the Buyer pursuant to the Small
Projects IPP Procurement Programme, in the
form attached in Volume 2 (Legal
Agreements) of this RFP as Appendix A;
2.1.81 "Preferential Procurement" - the extent to which a Measured Entity
procures goods and services from suppliers
with BBBEE Recognition Levels;
24
2.1.82 "Preferential Procurement Policy Framework Act" - the Preferential Procurement Policy
Framework Act, 5 of 2000;
2.1.83 "Preferred Bidder" - any Bidder that is selected by the Department
as such, and which upon acceptance of such
appointment shall designate a Project
Company with which the Buyer may possibly
conclude a PPA pursuant to the Small
Projects IPP Procurement Programme;
2.1.84 "Preferred Bidder Guarantee" - the guarantee to be provided by a Preferred
Bidder to the Department as defined in clause
23.1 (Preferred Bidder Guarantee) of this Part
A (General Requirements, Rules and
Provisions) of this RFP;
2.1.85 "Price" - the Commercial Energy Rate;
2.1.86 "Project Company" - the special purpose Company that a Bidder
proposes using as the vehicle to undertake
the Bidder's Project, that is the subject matter
of a Bid Response, and to be the Seller in
terms of the PPA;
2.1.87 "Project Officer" - the person appointed by the Department as
the project officer in respect of the Small
Projects IPP Procurement Programme;
2.1.88 "Rand" or "R" - South African Rand, the lawful currency of the
Republic of South Africa;
2.1.89 "Renewable Energy" - the harnessing of naturally occurring non-
depletable sources of energy, including solar,
wind, biomass, hydro, tidal, wave, ocean
current and geothermal, to produce electricity,
gaseous and liquid fuels, heat or a
combination of these energy types;
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2.1.90 "Related" - a relationship formed on the basis of any one
or more of (i) family (including spouses and in-
laws); (ii) friendship; (iii) business
acquaintance; (iv) professional engagement;
or (v) employment;
2.1.91 "RFP" - this Request for Qualifications and Proposal
document and all annexes, schedules and
other appendices to it and any Briefing Notes
issued in respect of it, from time to time;
2.1.92 "SABS" - South African Bureau of Standards
established pursuant to the Standards Act, 24
of 1945;
2.1.93 "Schedule" - any schedule attached to this RFP;
2.1.94 "Scheduled Operating Period" - the period from Scheduled COD until the
Expiry Date of the PPA;
2.1.95 "Second Determination" - determination number 1074, promulgated in
the Government Gazette on 19 December
2012, and made by the Minister, in
consultation with NERSA, pursuant to section
34 of the Electricity Regulation Act, provided
in Schedule 3B (Second Determination) of
Volume 1, Part 1 (Legal Notices, Government
Policies and Background Documents) of this
RFP;
2.1.96 "Second Stage 1 Bid Submission Date" - the date identified as the second Stage 1 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 10 February 2014;
26
2.1.97 "Second Stage 2 Bid Submission Date" - the date identified as the second Stage 2 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 23 March 2015;
2.1.98 "Seller" - any Project Company that enters into a PPA
to sell electricity generated by it or on its
behalf, to the Buyer in terms of a PPA entered
into pursuant to the Small Projects IPP
Procurement Programme;
2.1.99 "Selected Bidder" - any Bidder that is selected by the Department
as an entity which shall be permitted to submit
a Stage 2 Bid Submission following that
Bidder having fulfilled the requirements
specified as Stage 1 Qualification Criteria of
the Small Projects IPP Procurement
Programme;
2.1.100 "Self-Build Agreement" - the pro-forma agreement to be entered into
between the Project Company of a Preferred
Bidder and the relevant Grid Provider in
respect of the construction of the connection
works by the Project Company in respect of
the connection of the Units of the Project
Company's Facility to the relevant System
and, once completed, the transfer of the
connection works to the relevant Grid
Provider, in the form provided in Schedule 12
(Pro-forma Self-Build Agreement) of
Volume 1, Part 1 (Legal Notices, Government
Policies and Background Documents) of this
RFP;
2.1.101 "Shareholders" - the shareholders of the Project Company;
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2.1.102 "Signature Date" - the date on which a PPA is signed by the last
party to it to sign it, being either the Buyer or a
Seller;
2.1.103 "Small Projects" - projects using any of the Technologies which
have a minimum Contracted Capacity of
1 MW and a maximum Contracted Capacity of
5 MW;
2.1.104 "Small Projects IPP Procurement Programme" - the procurement programme being conducted
in terms of this RFP;
2.1.105 "Small Projects IPP Website" - www.ipp-smallprojects.co.za;
2.1.106 "SME" - Small and Medium business Enterprise and
bears the same meaning assigned to this
expression in the National Small Business Act
102 of 1996 , with specific reference to
Electricity, Gas and Water sector;
2.1.107 "SME Member" - a Member that is an SME;
2.1.108 "Socio-Economic Development" - the initiatives carried out by a Measured Entity
towards the promotion of access to the
economy by Black People and communities in
need;
2.1.109 "South African Entity Participation" - participation by Citizens as direct or indirect
Shareholders in the Project Company
determined by looking through the structure of
the Bidder and its Members to ascertain the
ultimate natural Citizens to whom the benefits
of Shareholding will accrue;
2.1.110 "Stage 1" - the period commencing on a Stage 1 Bid
Submission Date and ending on the
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submission by a Selected Bidder of its Stage
2 Bid Submission on a Stage 2 Bid
Submission Date;
2.1.111 "Stage 1 Bid Submission" - a Bidder's response to the Stage 1
Qualification Criteria set out in Part B (Stage 1
Qualification Criteria) of the RFP;
2.1.112 "Stage 1 Bid Submission Date" - a date identified as a Stage 1 bid submission
date and set out in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP;
2.1.113 "Stage 1 Bid Submission Phase" - a bid submission phase identified as a
Stage 1 bid submission phase in clause 10
(Timetable for Small Projects IPP
Procurement Programme) of this Part A
(General Requirements, Rules and
Provisions);
2.1.114 "Stage 1 Compliant Bid Submission" - a Stage 1 Bid Submission that meets the
requirements of Part B (Stage 1 Qualification
Criteria) of this RFP;
2.1.115 "Stage 1 Qualification Criteria" - the qualification criteria set out in Part B
(Stage 1 Qualification Criteria) of this RFP;
2.1.116 "Stage 2" - the period commencing on a Stage 2 Bid
Submission Date and continuing until the
Effective Date (as defined in the
Implementation Agreement) in respect of
Projects that were the subject matter of Stage
2 Bid Submissions submitted at the relevant
Stage 2 Bid Submission Date;
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2.1.117 "Stage 2 Bid Submission" - a Bidder's response to the Stage 2
Qualification and Evaluation Criteria set out in
Part C (Stage 2 Qualification Criteria) and Part
D (Stage 2 Evaluation Criteria) of the RFP;
2.1.118 "Stage 2 Bid Submission Date" - a date identified as a Stage 2 bid submission
date and set out in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP;
2.1.119 "Stage 2 Bid Submission Phase" - a bid submission phase identified as a Stage
2 bid submission phase in clause 10
(Timetable for Small Projects IPP
Procurement Programme) of this Part A
(General Requirements, Rules and
Provisions);
2.1.120 "Stage 2 Compliant Bid Submission" - a Stage 2 Bid Submission that meets the
requirements of clause 3 (Stage 2
Qualification Criteria) of Part C (Stage 2
Qualification Criteria) of this RFP and
"Compliant Bidder" shall have a
corresponding meaning;
2.1.121 "Stage 2 Evaluation Criteria" - the evaluation criteria set out in Part D (Stage
2 Evaluation Criteria) of this RFP;
2.1.122 "Stage 2 Qualification Criteria" - the qualification criteria set out in clause 2
(Stage 2 Qualification Criteria) of Part C
(Stage 2 Qualification Criteria) of this RFP;
2.1.123 "Success Payments" - all developers' fees, success fees, incentive
fees, participation fees, premia that are
predicated on achieving financial close or
30
being appointed preferred bidder in respect of
the Project, and similar fees or premia paid to
any person by any person, whether or not the
payer or payee is a member of the consortium
that formed the Seller; a developer of the
Project; a Shareholder; a Contractor or a third
party, as well as all monies or fees or premia
paid by way of dividend sharing, upside
sharing or return sharing paid by
Shareholders to any other person (regardless
of who they are), or any payments of any
similar nature or purpose, excluding any
arranging fees, underwriting fees and
participation fees payable or paid to the
Lenders directly in respect of the Debt, and
any success fees or arranging fees payable or
paid to advisors in respect of the Project,
provided such fees paid to Lenders or
advisors are within the current market range
of such fees;
2.1.124 "Technologies" - has the meaning given to it in clause 5.1.1.3
of this Part A (General Requirements, Rules
and Provisions);
2.1.125 "Third Stage 1 Bid Submission Date" - the date identified as the third Stage 1 Bid
Submission Date in clause 10 (Timetable for
Small Projects IPP Procurement Programme)
and clause 34 (Submission of Bid Response)
of this RFP, namely 14 July 2014;
2.1.126 "Third Stage 2 Bid Submission Date" - the date provisionally identified as the third
Stage 2 Bid Submission Date in clause 10
(Timetable for Small Projects IPP
Procurement Programme) and clause 34
31
(Submission of Bid Response) of this RFP,
namely 1 June 2015;
2.1.127 "Transaction Advisors" - the firms advising the Department in respect
of this RFP and the Small Projects IPP
Procurement Programme, being Ledwaba
Mazwai, Mott MacDonald, Novadays,
PriceWaterhouse Coopers; SPP Project
Solutions (Pty) Limited, Tony Wheeler
Consulting Limited, Webber Wentzel,
Linklaters LLP, Bowman Gilfillan, Edward
Nathan Sonnenbergs and Ernst & Young;
2.1.128 "Treasury Regulations" - the Treasury Regulations published under GN
R225 in Government Gazette 27388 of
15 March 2005, as amended by GN R146 in
Government Gazette 29644 of
20 February 2007, in terms of section 76(1) of
the PFMA;
2.1.129 "Ultimate Provider of Equity Finance" - a legal entity such as a Member, a parent
company, a guarantor, the IDC, the DBSA or
a similar institution from whom all or a portion
of a Member’s committed Equity Finance will
be sourced;
2.1.130 "Value for Money" - "value for money" as defined in the New Gen
Regulations and as described in clause 5.1.6
of this Part A (General Requirements, Rules
and Provisions); and
2.1.131 "VAT" - value-added tax levied in terms of the Value-
added Tax Act, 89 of 1991, as amended.
2.2 In this RFP:
2.2.1 references to a statutory provision include any subordinate legislation made
from time to time under that provision and include that provision as
modified or re-enacted from time to time;
32
2.2.2 words importing the masculine gender include the feminine and neuter
genders and vice versa;
2.2.3 the singular includes the plural and vice versa;
2.2.4 natural persons include artificial persons and vice versa;
2.2.5 references to a "person" include a natural person, company, close
corporation or any other juristic person or other corporate entity, a charity,
trust, partnership, joint venture, syndicate, or any other association of
persons;
2.2.6 references to a "subsidiary" or a "holding company" shall be references
to a subsidiary or holding company as defined in the Companies Acts;
2.2.7 if a definition imposes substantive rights and obligations on a person, such
rights and obligations shall be given effect to and shall be enforceable,
notwithstanding that they are contained in a definition;
2.2.8 any definition, wherever it appears in this RFP, shall bear the same
meaning and apply throughout this RFP unless otherwise stated;
2.2.9 the use of any expression covering a process available under South African
law (such as but not limited to a judicial management, business rescue or
winding-up) shall, if any of the Parties is subject to the law of any other
jurisdiction, be interpreted in relation to that Party as including any
equivalent or analogous proceeding under the law of such other jurisdiction;
2.2.10 references to any amount shall mean that amount exclusive of VAT, unless
the amount expressly includes VAT;
2.2.11 the rule of construction that if general words or terms are used in
association with specific words or terms which are a species of a particular
genus or class, the meaning of the general words or terms shall be
restricted to that same class (ie the eiusdem generis rule) shall not apply,
and whenever the word "including" is used followed by specific examples,
such examples shall not be interpreted so as to limit the meaning of any
word or term to the same genus or class as the examples given; and
33
2.2.12 unless otherwise specified, all references to any time shall be to the time of
day in Johannesburg, South Africa.
2.3 The expiration or termination of this RFP shall not affect such of the provisions of
this RFP which are expressly provided to operate after any such expiration or
termination, or which of necessity must continue to have effect after such
expiration or termination, notwithstanding that the relevant provisions themselves
do not provide for this.
3. Invitation
This RFP constitutes the formal invitation to Bidders to submit their detailed Bid
Responses for the supply of Energy to the Buyer, generated from new Renewable
Energy power generation Facilities which have a Contracted Capacity between 1
(one) MW and 5 (five) MW, following the Determinations. Copies of the Determinations
and the published and circulated Bid Notice are enclosed in Volume 1, Part 1 (Legal
Notices, Government Policies and Background Documents) of this RFP.
4. Background to the Small Projects IPP Procurement Programme
4.1 In the First Determination, the Minister indicated that new generation capacity is
necessary to ensure the continued uninterrupted supply of electricity and
determined that 3725 (three thousand seven hundred and twenty five) MW of
power was to be generated from Renewable Energy sources. In that
Determination, the Minister allocated 100 (one hundred) MW of the 3725 (three
thousand seven hundred and twenty five) MW to the procurement of Small
Projects which individually have a maximum Contracted Capacity of 5 (five) MW.
4.2 In the Second Determination, which amended the First Determination, the
Minister determined that 3200 (three thousand two hundred) MW of power be
generated from Renewable Energy sources. In terms of the Second
Determination a further 100 (one hundred) MW of the 3200 (three thousand two
hundred) MW was allocated to the procurement of Small Projects which
individually have a maximum Contracted Capacity of 5 (five) MW.
4.3 It is important to note that, despite the fact that the Second Determination
amended the First Determination and that a target of 200 (two hundred) MW has
been set for Small Projects by the Minister in terms of the Determinations, the
Department will initially only procure a total of 100 (one hundred) MW in terms of
34
the First Determination under the Small Projects IPP Procurement Programme.
Depending on numerous factors, including the responsiveness of the public to
the Small Projects IPP Procurement Programme, the Department intends to
include the additional 100 (one hundred) MW allocated to Small Projects in terms
of the Second Determination at a later stage of the Small Projects IPP
Procurement Programme and to allocate the 100 (one hundred) MW to the Third
and Fourth Stage 2 Bid Submission Phases.
4.4 Accordingly, this Small Projects IPP Procurement Programme has been designed
to procure the target of 100 (one hundred) MW determined by the Minister in the
First Determination and to contribute towards socio-economic and
environmentally sustainable growth, and to start and stimulate the Small Projects
Renewable Energy industry in South Africa.
4.5 During the course of 2009, NERSA published two documents relating to
Renewable energy Feed-In Tariffs ("REFIT").1 The REFIT Guideline contains the
REFIT Phase 1 Tariff, and the REFIT Decision contains the REFIT Phase II
Tariff. In 2011 NERSA announced its intention to review these tariffs, through the
Review of the Renewable Energy Feed In Tariffs Consultation Paper, March
2011 ("REFIT Consultation Paper"). The draft tariffs as published in the REFIT
Consultation Paper were intended to apply in respect of a specific REFIT based
procurement programme. This Small Projects IPP Procurement Programme is
not structured or intended to be a REFIT procurement programme as
contemplated in the REFIT Consultation Paper.
4.6 The overreaching objectives of the Small Projects IPP Procurement Programme
are the following:
4.6.1 to allow South African citizens who are, or who own or control, SMEs and
or emerging, smaller power developers an opportunity to participate in the
Renewable Energy generation sector;
1 These two documents are (a) the Regulatory Guidelines for the South Africa Renewable Energy Feed-In Tariff (REFIT) dated 26 March 2009 which were published under General Notice No 382 in Government Gazette 32122 of 17 April 2009 and included the REFIT Phase 1 Tariff Schedule in Appendix 1 ("REFIT Guidelines"); and (b) the Decision and Reasons for the Decision on Renewable Energy Feed-In Tariffs Phase II dated 29 October 2009 ("REFIT Decision"), which document is available on NERSA's website but has not been published in the Government Gazette.
35
4.6.2 to give South African power generation equipment manufacturers, who may
not have international certification, the opportunity to supply equipment for
the Projects procured under the Small Projects IPP Procurement
Programme; and
4.6.3 limit the cost-at-risk incurred by Bidders by participating in the Small
Projects IPP Procurement Programme by conducting the procurement in 2
stages.
4.7 In light of the objectives of the Small Projects IPP Procurement Programme, SME
participation, which focuses on the involvement and development of SMEs and
new developers in the Renewable Energy sector, has been included as an
Economic Development objective of the Small Projects IPP Procurement
Programme.
4.8 Although the equipment to be used in respect of the Facility does not have to be
internationally certified and may be manufactured locally, the Facility and the
equipment is still required to comply with the standards imposed by SABS and
the Codes and to satisfy all the technical criteria set out in clause 2.4 of Part B
(Stage 1 Qualification Criteria) and clause 2.6 of Part C (Stage 2 Qualification
Criteria). The Department recommends that Bidders, who propose using
equipment that is not internationally certified, engage with prospective lenders as
early as possible in the procurement process to obtain the approval of the
prospective lenders to such equipment.
4.9 In accordance with the Determinations, Projects under the Small Projects IPP
Procurement Programme must have a minimum Contracted Capacity of
1 (one) MW and a maximum Contracted Capacity of 5 (five) MW.
4.10 In terms of this Small Projects IPP Procurement Programme, the Bidders will be
required to bid the Price which will be payable by the Buyer pursuant to the PPA
to be entered into between the Buyer and the Project Company of a Preferred
Bidder. Bidders are required to offer two Prices, the first, based upon full CPI
indexation of the Price (the fully Indexed Price), and the second, based on
applying the CPI rate to a 30% (thirty percent) portion of the Price with the
remaining portion of the Price held constant (partial indexation in respect of CPI)
(the partially Indexed Price). The fully-indexed Price bid should not exceed the
cap allocated for each Technology set out in the table under clause 5.1.5.4 of this
36
Part A (General Requirements, Rules and Provisions). The fully-indexed Price
will be included as an evaluation criterion to be taken into account in an
evaluation pursuant to Part D (Stage 2 Evaluation Criteria) of this RFP.
4.11 Due to the unique elements of the Projects envisaged under this RFP, a specific
Scheduled Operating Period has not been prescribed for the PPA. Bidders are
therefore required to propose a Scheduled Operating Period that must be
between 5 (five) years and 20 (twenty) years. For instance, it may be necessary
for a Project that is financed by external debt finance to have a longer Scheduled
Operating Period in order to repay the loan than a Project that is funded by a
related party or is corporate financed. In addition, it may be more viable for
Bidders that are developing Projects that do not have a dependable fuel source
to select a shorter Scheduled Operating Period that corresponds with the
anticipated fuel supply available to the Project. Generally, Bidders will be able to
offer a more competitive Price to the Department if they select a longer
Scheduled Operating Period.
4.12 Distinction between the Small Projects IPP Procurement Programme and
the Cogeneration Procurement Programme
4.12.1 Small Projects IPP Procurement Programme
4.12.1.1 As set out above, this Small Projects IPP Procurement Programme
has been designed to initially procure the target of 100 (one
hundred) MW determined by the Minister in the First Determination
and to start and stimulate the Small Projects Renewable Energy
industry in South Africa. This Small Projects IPP Procurement
Programme will be used to procure projects that utilise Renewable
Energy Technologies and will not relate to the procurement of
cogeneration projects. Projects that are cogeneration projects in
terms of the concept detailed in clause 4.12.2.2 will not be entitled to
be the subject matter of Bid Responses pursuant to this Small
Projects IPP Procurement Programme.
4.12.2 Cogeneration IPP Procurement Programme
4.12.2.1 The cogeneration IPP procurement programme is intended to be
introduced by the Department in the future, in order to procure
cogeneration projects.
37
4.12.2.2 Cogeneration is the simultaneous generation of electricity and useful
thermal energy from a common fuel and energy source. In the South
African context, cogeneration also refers to the production of
electricity and useful heat from a fuel or energy source which is a co-
product, by-product, waste product or residual product of some
underlying industrial process. It differs from conventional generation
in that it is coupled to an industrial process of the host plant.
4.12.2.3 The generation capacity to be delivered by cogeneration projects will
be on the basis of the determination made by the Minister on
19 December 2012. It is intended that NERSA will licence
cogeneration projects pursuant to the cogeneration IPP procurement
programme.
4.12.3 The Small Projects IPP Procurement Programme and the cogeneration IPP
procurement programme identified above will run independently of each
other, and each programme will be subject to its own rules, criteria and
conditions.
4.13 Small Hydro as a Technology under this Programme and a Different
Procurement Programme to procure Small Hydro Projects using DWA
Assets
4.13.1 Small hydro was included as a technology for Small Projects in the Second
Determination, but the Department has elected to initially exclude small
hydro as a technology in respect of which Bidders may submit Bid
Responses under the Small Projects IPP Procurement Programme. The
Department intends to introduce small hydro as a qualifying technology at a
later stage of the Small Projects IPP Procurement Programme.
4.13.2 The Department also intends to introduce, and is in the process of
developing, a procurement programme to procure small hydro projects to
be developed on dams or weir sites owned by the DWA. Projects
developed on dam or weir sites owned by the DWA will not be procured
under this Small Projects IPP Procurement Programme and will not be
eligible to be the subject matter of Bid Responses submitted under this
Small Projects IPP Procurement Programme. These small hydro projects
will be procured under a separate procurement process, and will be subject
38
to different requirements and criteria than the small hydro projects
developed on privately owned dams and rivers that the Department intends
to procure under this Small Projects IPP Procurement Programme in the
future.
4.14 Participation in the IPP Procurement Programme and this Small Projects
IPP Procurement Programme
4.14.1 A Bidder that:
4.14.1.1 registered to submit a bid response in respect of a project under the
IPP Procurement Programme and which then did not (or will not, as
the case may be) submit a bid response on a bid submission date; or
4.14.1.2 a bidder that submitted a bid response in respect of a project under
the IPP Procurement Programme and who was unsuccessful and
accordingly, was not appointed as preferred bidder in respect of that
project,
may participate in, and submit a Bid Response in respect of the same
project in response to this Small Projects IPP Procurement Programme, to
the extent that the project and the Bidder meet the goals and requirements
of this Small Projects IPP Procurement Programme, including those of
South African Entity Participation and shareholding by SMEs.
4.14.2 However, a Bidder may not register or submit a bid response in respect of a
project under the IPP Procurement Programme in conjunction with the
submission or registration of the same project under this Small Projects IPP
Procurement Programme. A Bidder may also not split the contracted
capacity of a project that was previously registered and or submitted, or is
currently registered and or will be submitted under the IPP Procurement
Programme into two or more Projects in order to comply with the
requirement of this Small Projects IPP Procurement Programme that a
Project must have a Contracted Capacity between 1 (one) MW and
5 (five) MW. This prohibition does not restrict a Bidder from reducing the
contracted capacity of a project to between 1 (one) MW and 5 (five) MW.
4.14.3 Bidders and or Members of a Bidder that submit a Bid Response in respect
of a Project under this Small Projects IPP Procurement Programme and
39
who are unsuccessful and who are not appointed as Selected Bidders and
or Preferred Bidders in respect of that Project, may participate in and may
submit a Bid Response in response to the IPP Procurement Programme in
respect of the same Project or a different Project if the Project meets the
requirements of the IPP Procurement Programme, provided that such
Bidder does not participate in Small Projects IPP Procurement Programme
and the IPP Procurement Programme at the same time in respect of the
same Project.
4.14.4 Bidders and their Members will be required to disclose to the Department if
their Project was previously registered under the IPP Procurement
Programme and or the subject of a bid response under the IPP
Procurement Programme on registration of their Stage 1 Bid Submissions.
Bidders will also be required to provide an undertaking to the Department in
Schedule 14 (Declaration of Bidder) in Volume 1, Part 2 (Stage 1
Returnable Schedules) that the disclosure made in this regard is true and
correct in all respects. A Bidder may, in the sole discretion of the
Department, be disqualified from participating under the Small Projects IPP
Procurement Programme where the Department discovers that a Bidder
made a false, misleading or incorrect disclosure in relation to its
participation or registration under the IPP Procurement Programme.
5. Small Projects IPP Procurement Programme Description
5.1 Key features of this Small Projects IPP Procurement Programme
In this section, several key features of this Small Projects IPP Procurement
Programme are introduced, all of which are described in more detail in relevant
sections of this RFP. This section serves merely as an introduction to these
features, and an explanation of the rationale for their inclusion in this Small
Projects IPP Procurement Programme.
5.1.1 Technologies and Allocation of Megawatts
5.1.1.1 The Determinations require that the Department procure Energy
Output from certain Renewable Energy technologies in respect of
Small Projects and the Department has designed the Small Projects
IPP Procurement Programme and published this RFP to procure this
Energy Output.
40
5.1.1.2 As set out in clause 4.13, the Department has elected to initially
exclude small hydro as a technology in respect of which Bidders may
submit Bid Responses under the Small Projects IPP Procurement
Programme even though it was included as a technology for Small
Projects in the Second Determination. The Department intends to
introduce small hydro as a qualifying technology at a later stage of
the Small Projects IPP Procurement Programme.
5.1.1.3 Pursuant to the above, the following technologies shall initially be
considered as qualifying technologies for selection under this Small
Projects IPP Procurement Programme:
5.1.1.3.1 onshore wind;
5.1.1.3.2 solar photovoltaic,
5.1.1.3.3 biomass;
5.1.1.3.4 biogas; and
5.1.1.3.5 landfill gas.
(together the "Technologies").
5.1.1.4 Following each Stage 1 Bid Submission Date, the Department will
determine how the total MW available at the next Stage 2 Bid
Submission Date will be allocated amongst the Technologies set out
in clause 5.1.1.3 above. The Department will advise the Bidders of
the MW allocation per Technology for each Stage 2 Bid Submission
Phase within a reasonable period of time before the relevant Stage 2
Bid Submission Date.
5.1.1.5 The Department reserves the right to re-allocate the MW available
amongst the various Technologies, in its sole discretion, at any stage
of the Small Projects IPP Procurement Programme.
5.1.1.6 Projects submitted in respect of any Bid Submission Date and that
utilise any of the Technologies must be capable of beginning
commercial operation before the end of December 2017.
41
5.1.1.7 Projects in respect of all Technologies must have a Contracted
Capacity within the range of 1 (one) MW to 5 (five) MW.
5.1.1.8 The Department of Water Affairs has declared South Africa a water
scarce country 2 and, as such, the Government is mindful of the
impact that this Small Projects IPP Procurement Programme will have
on the water resources of the country.
5.1.1.9 Accordingly, the Department intends to encourage, as far as possible,
the use of water efficient technologies. In particular, proposed
Projects located in areas of the country that are water stressed
should employ solutions providing ‘best available technology’
solutions in order to promote the efficient use of water in such areas.
The Department is closely monitoring technological advances in
water efficiency within Technologies and may impose specific water
efficiency Qualification Criteria in clause 2.6 (Technical Criteria) of
Part C (Stage 2 Qualification Criteria) of this RFP for purposes of
future Bid Submission Phases.
5.1.2 Key Role Players in the Small Projects IPP Procurement Programme
5.1.2.1 The Minister
The Minister of Energy has issued the Determinations in accordance
with section 34(1) of the Electricity Regulation Act, and the Small
Projects IPP Procurement Programme has been implemented based
on the Determinations made by the Minister of Energy.
5.1.2.2 National Treasury
National Treasury will oversee the Small Projects IPP Procurement
Programme as the department of finance in Government, and in order
to ensure compliance with the provisions of the PFMA.
5.1.2.3 The Department
2Department of Water Affairs, National Water Resource Strategy: Introduction, First Edition,
September 2004, p2
42
The Department, as the custodian of the energy resources in the
Republic of South Africa, is undertaking the Small Projects IPP
Procurement Programme, following the Determinations issued by the
Minister. The Department will evaluate the Stage 1 Bid Submissions
and select Selected Bidders who will be given the opportunity to
submit Stage 2 Bid Submissions at any Stage 2 Bid Submission Date.
The Department will evaluate the Stage 2 Bid Submissions of the
Selected Bidders and select Preferred Bidders. The Department will
also play an ongoing role up to and beyond Financial Close in
facilitating the conclusion of the Implementation Agreement, the PPA
and the Direct Agreement by the relevant parties and monitoring
compliance with these agreements.
5.1.2.4 The Buyer
The Buyer is the legal entity designated by the Minister in the
Determinations to purchase the Energy Output from the Project
Company of a Preferred Bidder pursuant to a PPA entered into
pursuant to the Small Projects IPP Procurement Programme.
5.1.2.5 NERSA
NERSA is established by section 3 of the National Energy Regulator
Act, 40 of 2004. NERSA is the custodian and enforcer of the
regulatory framework provided for in the Electricity Regulation Act. In
order to carry out this function, the Electricity Regulation Act gives
NERSA various powers. These include the power to consider
applications for the licences required and issued under the Electricity
Regulation Act. Under the Electricity Regulation Act, a generation
licence must be obtained from NERSA for the lawful operation of a
Facility. The responsibility for applying for, and obtaining, such
generation licence rests with the Bidder. A Preferred Bidder will be
required to apply for a generation licence from NERSA on the basis of
its Bid Response and in the name of its Project Company. The
Bidder must submit evidence to the Department that the application
with all the required supporting documentation for a generation
licence has been submitted and received by NERSA within 14
(fourteen) days of being appointed as Preferred Bidder.
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5.1.2.6 The Distributor
The Distributor is the legal entity responsible for distributing electricity
through a Distribution System. A Bidder whose Facility is to be
connected to the Distribution System will be required, in its capacity
as a customer of a Distributor, to conclude a distribution agreement
with a Distributor prior to or simultaneously with the conclusion of the
PPA. A Bidder whose Facility is to be connected to the Eskom
Distribution System will be required, in its capacity as a customer of
Eskom, to conclude the Eskom Distribution Agreement attached to
this RFP as Appendix D (Eskom Distribution Agreement) in Volume 2
(Legal Agreements). A Bidder whose Facility is to be connected to
the Municipal Distribution System will be required, in its capacity as a
customer of the relevant municipal Distributor, to conclude a
Municipal Distribution Agreement in a form similar to the agreement
attached in Volume 1, Part 1 (Legal Notices, Government Policies
and Background Documents) as Schedule 10 (Pro-forma Municipal
Distribution Agreement).
5.1.3 Phased Bid Submission
5.1.3.1 In order to balance Government's objectives as regards to security of
supply and Renewable Energy targets with the technical and
commercial constraints faced by potential Bidders, and having regard
to constitutional requirements of fairness, transparency, equitability,
competitiveness and cost-effectiveness, this Small Projects IPP
Procurement Programme has been designed on the basis of Bid
Submission Phases.
5.1.3.2 As at the date of issue of this RFP, it is anticipated that there will be 4
(four) Stage 1 Bid Submission Phases and 4 (four) Stage 2 Bid
Submission Phases in respect of this Small Projects IPP Procurement
Programme. The total allocation of 100 (one hundred) MW pursuant
to the First Determination will be split between the first 2 (two) distinct
Stage 2 Bid Submission Phases. The table below sets out the
number of MW allocated to the first 2 (two) Stage 2 Bid Submission
Phases. After each Stage 1 Bid Submission Date, the Department
will determine how the total MW available at the next Stage 2 Bid
44
Submission Date will be allocated amongst the Technologies and
advise the Bidders accordingly.
Stage 2 Bid Submission Phase No. of MW
First Stage 2 Bid Submission Phase 50 (fifty) MW
Second Stage 2 Bid Submission Phase 50 (fifty) MW
5.1.3.3 The total allocation of 100 (one hundred) MW pursuant to the Second
Determination will be allocated to the Third and Fourth Stage 2 Bid
Submission Phases. At the time that the Department includes the
100 (one hundred) MW pursuant to the Second Determination under
this Small Projects IPP Procurement Programme, the Department will
advise Bidders on the specific allocation of MW to each of the Third
and Fourth Stage 2 Bid Submission Phases.
5.1.3.4 The phasing will work on the basis that the total allocation of MW per
Technology is made available during the Stage 2 Bid Submission
Phase, but if it is undersubscribed (having regard to all Stage 2
Compliant Bid Submissions submitted for each Technology) and
subject to any MW allocation limitation which the Department may
impose for any specific Bid Submission Phase, the remaining MW will
be added to the MW available at the next Stage 2 Bid Submission
Date. If there are any MW remaining after the last Stage 2 Bid
Submission Phase the Department may, in its sole discretion, extend
the Small Projects IPP Procurement Programme by introducing a
further Stage 2 Bid Submission Phase. The Department may also, in
addition to the First and Second Determinations, in its sole discretion,
elect to motivate for a further determination from the Minister to seek
an increase in the MW allocation for the Small Projects IPP
Procurement Programme at any stage of the Small Projects IPP
Procurement Programme.
5.1.4 The 2 Stage Approach
45
5.1.4.1 The Small Projects IPP Procurement Programme will be conducted in
2 (two) stages, Stage 1 and then Stage 2. A Bidder will only be
permitted to submit its Stage 1 Bid Submission at the relevant Stage
1 Bid Submission Date, and only if a Bidder fulfils the requirements of
the Stage 1 Qualification Criteria and is awarded Selected Bidder
status, will the Bidder have the opportunity to prepare its Stage 2 Bid
Submission to be submitted at a Stage 2 Bid Submission Date
subsequent to the Bidder being awarded Selected Bidder status.
5.1.4.2 The Department recognises that the Projects submitted under the
Small Projects IPP Procurement Programme may be at different
stages of readiness and that some Projects may require more time in
order to satisfy the criteria for a Stage 2 Bid Submission after
selection of Selected Bidders pursuant to a Stage 1 Bid Submission.
Therefore, once a Bidder has submitted a Stage 1 Bid Submission
and has been awarded Selected Bidder status, the Selected Bidder
may elect on which Stage 2 Bid Submission Date it will submit its
Stage 2 Bid Submission. For example, a Selected Bidder that
submits a Stage 1 Bid Submission on the First Stage 1 Bid
Submission Date will not be obliged to submit its Stage 2 Bid
Submission on the First Stage 2 Bid Submission Date, but may do so
on the second Stage 2 Bid Submission Date when the Selected
Bidder is in a position to comply with and satisfy the requirements of
Part C (Stage 2 Qualification Criteria) and Part D (Stage 2 Evaluation
Criteria) of the RFP. Accordingly, a Bidder will only be considered by
the Department for appointment as a Preferred Bidder, once that
Bidder has submitted a Stage 1 Bid Submission on a Stage 1 Bid
Submission Date and been selected as a Selected Bidder, and it has
submitted a Stage 2 Bid Submission on a Stage 2 Bid Submission
Date.
5.1.4.3 In the first stage, using Part B of this RFP (Stage 1 Qualification
Criteria), all Stage 1 Bid Submissions will be assessed in order to
determine whether they are Stage 1 Compliant Bid Submissions. A
Stage 1 Compliant Bid Submission is a complete Stage 1 Bid
Submission that is in the format set out in clause 52 (Format of the
Bid Responses) of this Part A of the RFP and meets or exceeds the
46
threshold requirement in respect of every applicable Stage 1
Qualification Criterion set out in Part B (Stage 1 Qualification Criteria),
including in respect of sub-criteria which are set out under an
umbrella category of Stage 1 Qualification Criteria. The Stage 1
Qualification Criteria contemplate the provision of basic information
about the Bidder and the Project in order to provide the Department
with sufficient information for the Department to assess whether the
Project is properly conceived and whether the Bidder has the
technical and commercial capacity to implement and operate the
Project.
5.1.4.4 Sub-criteria are set out under categories of Stage 1 Qualification
Criteria. The Stage 1 Qualification Criteria are divided into the
following categories in Part B (Stage 1 Qualification Criteria):
5.1.4.4.1 Legal Criteria and Evaluation;
5.1.4.4.2 Land Acquisition and Land Use Criteria and Evaluation;
5.1.4.4.3 Environmental Criteria and Evaluation;
5.1.4.4.4 Technical Criteria and Evaluation; and
5.1.4.4.5 Economic Development Criteria and Evaluation.
5.1.4.5 In the second stage, using Part C of this RFP (Stage 2 Qualification
Criteria), all Bid Responses will be assessed in order to determine
whether they are Stage 2 Compliant Bid Submissions. A Stage 2
Compliant Bid Submission is a complete Stage 2 Bid Submission that
is in the format set out in clause 52 (Format of the Bid Responses) of
this Part A of the RFP and meets or exceeds the threshold
requirement in respect of every applicable Stage 2 Qualification
Criterion set out in Part C (Stage 2 Qualification Criteria), including in
respect of sub-criteria which are set out under an umbrella category
of Stage 2 Qualification Criteria.
5.1.4.6 The Stage 2 Qualification Criteria entail detailed legal, financial,
technical, Economic Development and commercial information about
the Bidder and the Project, divided into the following categories:
47
5.1.4.6.1 Structure of the Project;
5.1.4.6.2 Stage 2 Legal Criteria and Evaluation;
5.1.4.6.3 Stage 2 Land Acquisition and Land Use Criteria and Evaluation;
5.1.4.6.4 Stage 2 Environmental Consent Criteria and Evaluation;
5.1.4.6.5 Stage 2 Financial Criteria and Evaluation;
5.1.4.6.6 Stage 2 Technical Criteria and Evaluation;
5.1.4.6.7 Stage 2 Economic Development Criteria and Evaluation; and
5.1.4.6.8 Value for Money.
5.1.4.7 The threshold requirement in respect of each Stage 1 or Stage 2
Qualification Criterion is described in the applicable provision of Part
B (Stage 1 Qualification Criteria) or Part C (Stage 2 Qualification
Criteria). Self-evidently, a Bid Response need not meet the
Qualification Criteria that are Technology-specific and that relate to
Technologies other than the one relevant to its Project. More detail
on the Part C assessment can be found at clause 1 (The Purpose of
this Part C) of Part C (Stage 2 Qualification Criteria).
5.1.4.8 In the second stage, using Part D (Evaluation Criteria) of this RFP,
and subject to relevant provisions of clause 9 (Structure of the IPP
Procurement Programme) of this Part A (General Requirements,
Rules and Provisions), Stage 2 Compliant Bid Submissions will be
evaluated on a comparative basis, per Technology, in relation to Price
and Economic Development only. More detail on the Part D
evaluation can be found at clause 1 (Purpose of this Part D) of Part D
(Evaluation Criteria).
5.1.4.9 NERSA published Rules on Selection Criteria for Renewable Energy
Projects in February 2010. These criteria were only published for
consultation purposes and were not published in the Government
Gazette. The NERSA selection criteria have no legal force and are
not binding on the Department. These non-binding selection criteria
will not be used or relied upon by the Department in the application or
48
the evaluation of the Qualification Criteria under Part B (Stage 1
Qualification Criteria), Part C (Stage 2 Qualification Criteria) of this
RFP or in the application or the evaluation of the Stage 2 Evaluation
Criteria under Part D (Evaluation Criteria) of this RFP.
5.1.4.10 If, at a Stage 2 Bid Submission Date, there are insufficient Stage 2
Compliant Bid Submissions to provide the maximum MW allocated to
a Technology at the relevant Stage 2 Bid Submission Phase of the
Small Projects IPP Procurement Programme, all the Bidders that
have submitted Stage 2 Compliant Bid Submissions may, in the
Department's sole discretion, be appointed as Preferred Bidders by
the Department and might not be required to undergo a comparative
evaluation of the Stage 2 Compliant Bid Submissions as provided for
in Part D (Stage 2 Evaluation Criteria) of this RFP. If the total
allocation of MW made available during the relevant Stage 2 Bid
Submission Phase is less than the amount of MW offered by the
Stage 2 Bid Submissions submitted with the result that such Stage 2
is oversubscribed following the assessment of the Stage 2 Bid
Submissions, subject to the relevant provisions of clause 9 (Structure
of the IPP Procurement Programme) of this Part A (General
Requirements, Rules and Provisions), Stage 2 Compliant Bid
Submissions will be evaluated on a comparative basis, per
Technology, in relation to Price and Economic Development only, in
accordance with Part D (Stage 2 Evaluation Criteria). More detail on
the Part D evaluation can be found at clause 1 (Purpose of this Part
D) of Part D (Stage 2 Evaluation Criteria).
5.1.5 Electricity tariffs
5.1.5.1 The Electricity Regulation Act vests NERSA with the authority to
regulate prices and tariffs.
5.1.5.2 As detailed in clause 4.5 above, this Small Projects IPP Procurement
Programme is not structured or intended to be a REFIT procurement
programme as contemplated in the REFIT Consultation Paper. The
Department's view is that, notwithstanding the publication of any
REFIT, NERSA remains empowered, at the time of considering any
licence application, to make a tariff determination taking into
49
consideration all relevant factors, including the statutory tariff
principles provided for in section 15 of the Electricity Regulation Act.
5.1.5.3 Under the Electricity Regulation Act, a generation licence must be
obtained from NERSA for the lawful operation of a Facility, by each
Preferred Bidder in the name of its Project Company. The
responsibility for applying for, and obtaining, such generation licence
rests with the Bidder. Each Bidder will be required to apply for a
generation licence on the basis of its Bid Response from NERSA and
to submit evidence to the Department that the application for a
generation licence has been submitted and received by NERSA
within 14 (fourteen) days of the Bidder being appointed as Preferred
Bidder by the Department.
5.1.5.4 In this Small Projects IPP Procurement Programme, the fully-indexed
Price to be proposed by Bidders in their Bid Responses at the
relevant Bid Submission Date, cannot exceed the cap for each
Technology set out in the table below:
Technology Unit Commercial Energy Rate
Onshore Wind R/MWh R1 000 (one thousand
rand)/MWh
Solar Photovoltaic R/MWh R1 400 (one thousand four
hundred rand)/MWh
Biomass R/MWh R1 400 (one thousand four
hundred rand)/MWh
Biogas R/MWh R900 (nine hundred
rand)/MWh
Landfill gas R/MWh R940 (nine hundred and
forty rand)/MWh
5.1.5.5 As set out in more detail in clause 2.5.2 ( Criterion 1 - Price) of Part C
(Stage 2 Qualification Criteria) of this RFP, Bidders are required to
50
specify the Price to be paid by the Buyer for the supply of Energy
Output pursuant to a PPA concluded in respect of the Small Projects
IPP Procurement Programme. It is a requirement for a Stage 2
Compliant Bid Submission that a Bidder's offered fully-indexed Price
does not exceed the applicable cap set out in the table under
clause 5.1.5.4 above. For purposes of Part D (Stage 2 Evaluation
Criteria) of this RFP, the Prices offered in Bid Responses relating to a
particular Technology will be comparatively scored and ranked. For
more information on this aspect of the Small Projects IPP
Procurement Programme, see clause 2 (Price) of Part D (Stage 2
Evaluation Criteria) of this RFP.
5.1.5.6 The Price offered in the Bid Response will, once an election has been
made by the Department as to a Preferred Bidder’s fully-indexed or
partially-indexed Price, be adjusted at Financial Close as a result of
movement in the foreign exchange spot rates between those rates
assumed in the Financial Models and the equivalent rates at Financial
Close, to the extent provided for in this RFP. The Department will
advise Bidders of the foreign exchange rate assumptions for the
purposes of preparing their Financial Models before the First Stage 2
Bid Submission Date and in the manner set out in any information or
documentation request, or any protocol for Financial Close for the
relevant Bid Submission Phase.
5.1.5.6.1 For each Bid Submission Date, the Department will
communicate in a Briefing Note with Bidders regarding the
foreign exchange rate assumptions to be used for the purposes
of preparing their Financial Models.
5.1.5.6.2 Each of the Preferred Bidder's Financial Models will be adjusted
at Financial Close to take account of changes in Capital
Expenditure (excluding contingencies) resulting from
movements in the applicable foreign exchange spot rates from
the relevant Stage 2 Bid Submission Date to Financial Close,
so that the Preferred Bidder's IRR is unchanged from that
shown in the Financial Models prior to such adjustment. After
Financial Close, there will be no further adjustment for
exchange rates. For the avoidance of any doubt, no
51
adjustments shall be made in respect of the impact (if any) of
movements in foreign exchange spot rates on operating and
other costs incurred after the Commercial Operation Date.
5.1.5.6.3 The Department has decided to place a cap on the level of
foreign currency exposure it would accept for the period
between the relevant Stage 2 Bid Submission Date and
Financial Close. The Price offered in a successful Bid
Response will be adjusted at Financial Close as a result of
movement in the foreign exchange spot rates between those
rates assumed in the Financial Models and the equivalent rates
at Financial Close, subject to an upper limit of foreign exchange
exposure of either 60% (sixty percent) of the Capital
Expenditure of the Project (excluding contingencies), or the
actual foreign exchange exposure, in respect of the Capital
Expenditure (excluding contingencies), whichever is the lower.
5.1.5.6.4 No change will be made to this upper limit of foreign exchange
exposure and any changes for subsequent Bid Submission
Phases will be communicated to Bidders by Briefing Note.
5.1.6 Value for Money
5.1.6.1 The New Gen Regulations, in Regulation 9, provide that the Buyer
cannot enter into a PPA unless that PPA presents value for money.
The term 'value for money' in the New Gen Regulations is defined to
mean that "the new generation capacity project results in a net benefit
to the prospective buyer or to the Government having regard to cost,
price, quality, quantity, risk transfer or a combination thereof, but also
where applicable to the Government's policies in support of
Renewable Energy".
5.1.6.2 Accordingly, the value for money concept requires an assessment
that takes into account and considers a number of issues and
considerations, no one of which is more dominant or pre-eminent
than another, as all issues and considerations are of importance in
the assessment but might not necessarily bear equal weighting. This
assessment is carried out as per clause 2.8 (Value for Money) of
52
Part C (Stage 2 Qualification Criteria) of this RFP. The outcome of
the consideration, as to whether or not a Project delivers Value for
Money, is required to produce an assessment that is in the best
interests of and delivers the best outcome to the Buyer and the
Government (acting on behalf of and in the best interests of the
people of South Africa, including electricity users).
5.1.6.3 In order for a Bidder to pass the Qualification Criterion contemplated
in clause 2.8 (Value for Money) of Part C (Stage 2 Qualification
Criteria) of the RFP, its Bid Response must, in the opinion of the
Department, demonstrate Value for Money to the Buyer and
Government.
5.1.7 Non-negotiability of PPA, Implementation Agreement, Direct
Agreement and Connection Agreements
5.1.7.1 The draft PPA, Implementation Agreement, Direct Agreement and the
Connection Agreements issued with this RFP are not negotiable and
may not be marked up by Bidders. The status of these draft
agreements and the terms and conditions of this RFP relating thereto
are discussed in more detail at clauses 5.2.2 of this Part A (General
Requirements, Rules and Provisions) and clause 2.2 (Legal Criteria
and Evaluation) of Part C (Qualification Criteria).
5.1.7.2 The Department reserves the right to issue revised versions of the
draft PPA, Implementation Agreement, Direct Agreement and the
Connection Agreements during the course of the Small Projects IPP
Procurement Programme.
5.1.8 Economic Development Requirements
5.1.8.1 The achievement of the Department's Economic Development
objectives through the Small Projects IPP Procurement Programme is
a crucial indicator of success of the Small Projects IPP Procurement
Programme. For purposes of a Stage 1 Bid Submission, Bidders are
required to indicate the anticipated extent or level of South African
Entity Participation, SME Participation and the Contributor Status
Level in respect of each of the Shareholders of the Project Company
as well as the Project Company itself.
53
5.1.8.2 For purposes of Part C (Stage 2 Qualification Criteria) of this RFP, it
is a requirement for a Stage 2 Compliant Bid Submission that a
Bidder's Economic Development proposal meets the threshold
targets set out in clause 2.7 (Stage 2 Economic Development Criteria
and Evaluation) of Part C (Stage 2 Qualification Criteria) of this RFP.
For purposes of Part D (Stage 2 Evaluation Criteria) of this RFP, the
Economic Development proposals in Stage 2 Bid Submissions
relating to a particular Technology will be comparatively scored and
ranked. The Economic Development commitments are evaluated in
Part D (Evaluation Criteria) out of a maximum of 30 (thirty) points
using the Economic Development Scorecard developed for the
purposes of this Small Projects IPP Procurement Programme. For
more information on this aspect of the Small Projects IPP
Procurement Programme, see clause 9 (Structure of the Small
Projects IPP Procurement Programme) of Part A (General
Requirements, Rules and Provisions) of this RFP.
5.2 Project structure and contracts
5.2.1 The Bidders are invited to submit proposals for the supply of Energy Output
to the Buyer, generated from new Renewable Energy power generation
Facilities adopting the Technologies, for the purpose of entering into an
Implementation Agreement, a PPA, Direct Agreement (where applicable)
and Connection Agreements with the relevant counterparties. The Project
Company of a Bidder must be a special purpose Company established with
the sole purpose of undertaking the Bidder's Project and, subject to clause
19 (Legal Personality of Bidder and its Members and Changes to Bid
Responses) of this Part A (General Requirements, Rules and Provisions),
all Shareholders of a Project Company are required to be Members of the
Bidder that designates that Project Company to be a Seller.
5.2.2 The Project Company of a Preferred Bidder:
5.2.2.1 will, if the Preferred Bidder complies with the terms and conditions of
appointment and this RFP, enter into an Implementation Agreement
with the Department, pursuant to which the Department will grant the
Project Company the right to undertake the Project on the terms and
conditions of the Implementation Agreement and the PPA. The draft
54
Implementation Agreement issued with this RFP may not be marked-
up by a Selected Bidder or a Preferred Bidder and will not be subject
to negotiation with the Department by a Preferred Bidder or its Project
Company;
5.2.2.2 which enters into the Implementation Agreement, will enter into a
PPA with the Buyer in respect of the Energy to be supplied by its
Facility on the basis that the Buyer shall be obliged to purchase such
Energy Output delivered to the Delivery Point. The draft PPA issued
with this RFP may not be marked-up by a Selected Bidder or a
Preferred Bidder and will not be subject to negotiation with the
Department or the Buyer by the Preferred Bidder or its Project
Company. If a Bidder will be connecting its Facility to a Municipal
Distribution System, the entry into an Amendment Agreement to the
Electricity Supply Agreement between the municipal Distributor and
Eskom will be a condition to signature of the PPA by Eskom;
5.2.2.3 which enters into a PPA, will also enter into a Eskom Distribution
Agreement with Eskom, or into a Municipal Distribution Agreement
with the relevant municipality, as the case may be, in respect of the
connection of the relevant Facility to and the use of a Distribution
System. The Connection Agreements issued with this RFP in Volume
2 (Legal Agreements) may not be marked-up by a Selected Bidder or
a Preferred Bidder, and will not be subject to negotiation with Eskom
by the Preferred Bidder or its Project Company. The pro-forma
Municipal Distribution Agreement issued in Volume 1, Part 1 (Legal
Notices, Government Policies and Background Documents) of this
RFP as Schedule 10 (Pro-forma Municipal Distribution Agreement),
has been provided for information purposes and contains the terms
and conditions that could be included in the distribution agreement to
be concluded by the Project Company and the relevant municipality;
and
5.2.2.4 which enters into the aforesaid agreements, may enter into a :
5.2.2.4.1 a Self-Build Agreement with the relevant Grid Provider if the
Bidder intends to undertake the connection works to connect
each Unit physically to the relevant System as set out in clause
55
14.8 of this Part A (General Requirements, Rules and
Provisions). The pro-forma Self-Build Agreement, issued in
Volume 1, Part 1 (Legal Notices, Government Policies and
Background Documents) of this RFP as Schedule 12 (Pro-
forma Self Build Agreement) has been provided for information
purposes only and contains the terms and conditions that could
be expected in the agreement to be concluded by the Seller
and the relevant Grid Provider;
5.2.2.4.2 a Direct Agreement with its Lenders, the Department and the
Buyer in respect of each of the Implementation Agreement and
the PPA; and
5.2.2.4.3 a Connection Direct Agreement with its Lenders and Eskom in
respect of, inter alia, the Eskom Distribution Agreement; or
5.2.2.4.4 a Municipal Direct Agreement with its Lenders and the
municipal Distributor in respect of the Municipal Distribution
Agreement. The pro-forma Municipal Direct Agreement, issued
in Volume 1, Part 1 (Legal Notices, Government Policies and
Background Documents) of this RFP as Schedule 11 (Pro-
forma Municipal Direct Agreement), has been provided for
information purposes only and contains the terms and
conditions that could be included in the direct agreement to be
concluded by the Seller, the Lenders and the relevant
municipality.
56
5.2.3 The diagram below reflects the legal and contractual framework of the
Small Projects IPP Procurement Programme:
6. The Department's Rights
6.1 The Department reserves the right to:
6.1.1 select or not to select any one or more of the Bidders as a Selected Bidder;
6.1.2 select or not to select any one or more of the Bidders as a Preferred
Bidder;
6.1.3 award or not to award PPAs to any Preferred Bidders to be entered into
between the Project Companies of the relevant Preferred Bidders and the
Buyer at a date to be specified by the Department, simultaneously with the
entering into of the Implementation Agreement and the Direct Agreement
by the parties thereto;
6.1.4 cancel or suspend procurement of any or all of the Projects pursuant to the
Small Projects IPP Procurement Programme;
6.1.5 cancel, suspend or change the Small Projects IPP Procurement
Programme contained in this RFP at any stage;
6.1.6 limit the number of Stage 1 Bid Submission Dates and or Stage 2 Bid
Submission Dates or extend the number of Stage 1 Bid Submission Dates
and or Stage 2 Bid Submission Dates; and or
57
6.1.7 amend the RFP, the Implementation Agreement, the PPA, the Direct
Agreement and Connection Agreements at any time,
and the Department shall not be liable to any Bidder for any consequences,
claims or costs arising from any of these actions.
7. Structure of the RFP
7.1 The structure of the RFP is as follows:
7.1.1 Part A (General Requirements, Rules and Provisions) provides the general
information to the Bidder and includes, inter alia, the glossary of terms
detailing the defined terms used within this RFP, the Small Projects IPP
Procurement Programme scope and structure, Small Projects IPP
Procurement Programme purpose, the terms and conditions in terms of
which each Bidder submits its Bid Response, including detail regarding the
format of each Bid Response and the explanation of and background to the
procurement process;
7.1.2 Part B (Stage 1 Qualification Criteria) sets out the Stage 1 Qualification
Criteria that must be satisfied by the Bidder in order for a Stage 1 Bid
Submission to be considered by the Department as a Stage 1 Compliant
Bid Submission. This may in the sole discretion of the Department, form
the basis for the Bidder to be appointed as a Selected Bidder;
7.1.3 Part C (Stage 2 Qualification Criteria) sets out the Stage 2 Qualification
Criteria that must be satisfied by a Bidder in order for its Stage 2 Bid
Submission to be a Stage 2 Compliant Bid Submission;
7.1.4 Part D (Stage 2 Evaluation Criteria) sets out the evaluation procedure and
the Stage 2 Evaluation Criteria to be used by the Department, if a Part D
evaluation is necessary, in evaluating those Stage 2 Bid Submissions that
have fulfilled the Stage 2 Qualification Criteria in Part C (Stage 2
Qualification Criteria) and have progressed to Part D (Stage 2 Evaluation
Criteria) (i.e. Compliant Bids). The purpose of a Part D evaluation is to
determine the relative rankings of those Stage 2 Bid Submissions;
7.1.5 Volume 1, Part 1 (Legal Notices, Government Policies and Background
Documents) of this RFP contains relevant legal notices, government
58
policies and background documents that have been included with this RFP
in order to provide background information to the Bidders;
7.1.6 Volume 1, Part 2 (Stage 1 Bid Submission Returnable Schedules) of this
RFP, contains the returnable schedules which must be submitted by the
Bidders with the Stage 1 Bid Submission. If a template is provided in the
RFP for the submission of information in respect of a threshold criterion,
Bidders should not deviate from the template provided in the RFP;
7.1.7 Volume 1, Part 3 (Stage 2 Bid Submission Returnable Schedules) of this
RFP, contains the returnable schedules which must be submitted by the
Bidders with the Stage 2 Bid Submission. If a template is provided in the
RFP for the submission of information in respect of a threshold criterion,
Bidders should not deviate from the template provided in the RFP;
7.1.8 Volume 2 (Legal Agreements) of this RFP contains copies of the legal
agreements that will be required to be entered into by the Project Company
of a Preferred Bidder, namely, an Implementation Agreement, a PPA, a
Direct Agreement, an Eskom Distribution Agreement and a Connection
Direct Agreement;
7.1.9 Volume 3 (Technical Requirements) of this RFP contains the appendices in
respect of the Stage 1 and Stage 2 Technical Qualification Criteria. The
returnable schedules in Volume 3 (Technical Requirements) are templates
that the Bidders are required to use when responding to this RFP and
provide a standardised approach for presenting the requisite information
required by the Department for each technical threshold criterion. If a
template is provided in the RFP or on the Small Projects IPP Website for
the submission of information in respect of a threshold criterion, Bidders
should populate all aspects of the template and should not deviate from the
template provided in the RFP or on the Small Projects IPP Website where
downloadable excel spreadsheets are provided; nor should any fields be
added or removed; nor amended in any other way;
7.1.10 Volume 4 (Financial Requirements) of this RFP contains the appendices in
respect of the Stage 2 Financial Qualification Criteria as well as Appendix
G5 (Front Sheet Template for Financial Model, Technical Information and
Economic Development Information) which requires information in respect
59
of a number of aspects of the Stage 2 Bid Submission to be inputted into a
single Bid Returnable. The appendices in Volume 4 (Financial
Requirements) are templates that the Bidders are required to use when
responding to this RFP and provide a standardised approach for presenting
the requisite information required by the Department for the financial
threshold criterion. If a template is provided in the RFP for the submission
of information in respect of a threshold criterion, Bidders should not deviate
from the template provided in the RFP and no fields should be added or
removed; or amended in any other way; and
7.1.11 Volume 5 (Economic Development Requirements) of this RFP describes
and explains the elements on which each Bidder's Economic Development
proposal must be based.
8. Purpose of RFP
8.1 The purpose of this RFP is:
8.1.1 to set out the rules of participation in the Small Projects IPP Procurement
Programme;
8.1.2 to provide further information about the Small Projects IPP Procurement
Programme to the Bidders so as to allow them to prepare comprehensive
and competitive Bid Responses pursuant to the Small Projects IPP
Procurement Programme in respect of their Projects that they intend
entering into the Small Projects IPP Procurement Programme;
8.1.3 to give guidance to the Bidders in the preparation of their Bid Responses;
8.1.4 to enable the Department to consider those Bid Responses submitted by
Bidders that:
8.1.4.1 are technically, financially and legally qualified to execute the Project
and meet the criteria described in Part B (Stage 1 Qualification
Criteria);
8.1.4.2 have sufficient experience, commitment and resources to meet the
criteria of a Stage 1 Compliant Bid Submission in respect of Part B
(Stage 1 Qualification Criteria);
60
8.1.4.3 have sufficient experience, commitment and resources to meet the
criteria of a Stage 2 Compliant Bid Submission in respect of clause 2
(Stage 2 Qualification Criteria) of Part C (Stage 2 Qualification
Criteria);
8.1.4.4 fulfil the competitive Stage 2 Evaluation Criteria and requirements as
detailed in Part D (Stage 2 Evaluation Criteria); and
8.1.4.5 are able to execute their Project and provide a Facility as envisaged
by the Department;
8.1.5 to provide details of the remainder of the Small Projects IPP Procurement
Programme, including timeframes; and
8.1.6 to enable the Department to select Selected Bidders and then Preferred
Bidders.
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9. Structure of the Small Projects IPP Procurement Programme
9.1 The Small Projects IPP Procurement Programme will be conducted in 2 (two)
stages, Stage 1 and Stage 2. The Small Projects IPP Procurement Programme
has been structured to consist of 4 (four) separate Stage 1 Bid Submission Dates
and 4 (four) separate Stage 2 Bid Submission Dates specified in clause 10
(Timetable for Small Projects IPP Procurement Programme). The Department
reserves the right to change the number of Stage 2 Bid Submission Dates.
9.2 Bidders are reminded that Stage 1 Bid Submission Phases and Stage 2 Bid
Submission Phases are not linked to each other. Once a Bidder has submitted a
Stage 1 Bid Submission and has been selected as a Selected Bidder, the
Selected Bidder may elect on which Stage 2 Bid Submission Date it will submit its
Stage 2 Bid Submission. For example, a Selected Bidder that submits a Stage 1
First Stage 1 Bid
Submission (Part B)
First Stage 2 Bid Submission by
Selected Bidders only
(Parts C and D)
Third Stage 1 Bid
Submission (Part B)
Registration and provision of clause 9.10 information
Registration and confirmation of clause 9.10 information by Selected Bidders
Second Stage 1 Bid
Submission (Part B)
Part D Evaluation & BAFOs (if necessary)
Preferred Bidders
Appointed
Appointment of Selected
Bidders
Fourth Stage 2 Bid
Submission by Selected Bidders
only (Parts C and D)
Fourth Stage 1 Bid
Submission (Part B)
Second Stage 2 Bid
Submission by Selected Bidders
only (Parts C and D)
Third Stage 2 Bid Submission by
Selected Bidders only
(Parts C and D)
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Bid Submission on the First Stage 1 Bid Submission Date will not be obliged to
submit its Stage 2 Bid Submission on the First Stage 2 Bid Submission Date, but
may do so on the next Stage 2 Bid Submission Date when the Selected Bidder is
in a position to comply with and satisfy the requirements of Part C (Stage 2
Qualification Criteria) and Part D (Stage 2 Evaluation Criteria) of the RFP.
Accordingly, a Bidder will only be considered for appointment as a Preferred
Bidder by the Department, once it has submitted a Stage 1 Bid Submission on a
Stage 1 Bid Submission Date and been selected as a Selected Bidder and
submitted a Stage 2 Bid Submission on any Stage 2 Bid Submission Date
subsequent to the Bidder being awarded Selected Bidder status.
9.3 If, at any Stage 2 Bid Submission Date, there are insufficient Stage 2 Compliant
Bid Submissions to take up all of the available MW allocated to the relevant
Stage 2 Bid Submission Phase, the balance of available MW will be added to the
MW allocated to the next Stage 2 Bid Submission Phase for allocation to Bidders
in the next Stage 2 Bid Submission Phase.
9.4 If there are any MW remaining after the last Stage 2 Bid Submission Phase the
Department may, in its sole discretion, extend the Small Projects IPP
Procurement Programme by introducing a further Stage 2 Bid Submission Phase.
The Department may also, in its sole discretion, elect to motivate for a further
determination from the Minister to seek an increase in the MW allocation for the
Small Projects IPP Procurement Programme at any time during the Small
Projects IPP Procurement Programme.
9.5 Nevertheless, the overriding philosophy of the Small Projects IPP Procurement
Programme is that at each Bid Submission Phase, if there are insufficient
Compliant Bids to provide all of the available MW allocated to each Technology
for that Bid Submission Phase, the remaining available MW allocated to each
undersubscribed Technology, together with any MW that become available
following the disqualification for any reason of a Preferred Bidder in terms of
clause 27 (Disqualification) of Part A of this RFP, the loss of Preferred Bidder
status in terms of clause 28 (Loss of Preferred Bidder status) of Part A of this
RFP or if a Preferred Bidder from any Bid Submission Phase fails to reach
Financial Close, will be available for allocation to Bidders which submit Bid
Responses on the next Bid Submission Date, subject to the provisions of
clause 5.1.4 (The 2 stage Approach) of this Part A (General Requirements, Rules
and Provisions), and so on for each Bid Submission Phase.
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9.6 The Department will issue a public statement on the Small Projects IPP Website
notifying the Bidders of the MW available for allocation at the next Stage 2 Bid
Submission Date and, if it is necessary, to change the next Stage 1 or Stage 2
Bid Submission Date from the date specified in this RFP.
9.7 The Department may by Briefing Note, within any Bid Submission Phase, create
an alternative or amended timetable for one or more specific Technologies. This
may involve setting an earlier or later Bid Submission Date for one or more
specific Technologies, and amending the relevant timetable (as per clause 10
(Timetable for Small Projects IPP Procurement Programme) of Part A of this
RFP) for the specific technologies within the Bid Submission Phase.
9.8 The Department does not in any way undertake or guarantee that there will be
any subsequent Bid Submission Date, and no person will have a claim of any
nature whatsoever against the Department if it fails to submit its Bid Response by
a certain Bid Submission Date on the basis of an expectation that it will have the
opportunity to submit its Bid Response by a subsequent Bid Submission Date
and the subsequent Bid Submission Date does not materialise.
9.9 In order for a Bidder to submit a Bid Response in respect of any Stage 1 Bid
Submission Date and or any Stage 2 Bid Submission Date, a Bidder is required
within the time period indicated in clause 10 (Timetable for Small Projects IPP
Procurement Programme) of this Part A (General Requirements, Rules and
Provisions) to register its Bid Response and to notify the Department in writing of
the information specified in clause 9.10 of this Part A (General Requirements,
Rules and Provisions). Bidders will only be permitted to submit a Bid Response
in respect of a Project that corresponds with the bid registration number allocated
to that Project and the project information provided in respect of that Project on
bid registration.
9.10 Pursuant to clause 9.9 of this Part A, a Bidder must notify the Department in
writing by the Bid Registration Date for the relevant Stage 1 Bid Submission Date
of:
9.10.1 the Technology of the Project;
9.10.2 the Contracted Capacity of the Project;
9.10.3 the name and co-ordinates of the Project Site;
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9.10.4 whether the Bidder intends to connect its Project to the Eskom Distribution
System or a Municipal Distribution System and the specific Municipal
Distribution System;
9.10.5 the co-ordinates of the substation where the Bidder intends to connect its
Facility;
9.10.6 whether the Project was previously the subject of a Bid Response
registered and or submitted under this Small Projects IPP Procurement
Programme and all information in this regard;
9.10.7 whether the Project is or was previously the subject of a bid response
registered and or submitted under the IPP Procurement Programme and all
information in this regard; and
9.10.8 the information on the identity of all participants in the Project and all
Advisors to such participants, to enable a conflict of interest check to be
undertaken, in accordance with the format to be provided in a Briefing Note.
9.11 A Bidder will be required to notify the Department in respect of which Stage 2 Bid
Submission Date it intends to submit its Stage 2 Bid Submission and confirm the
information and or notify the Department of any changes to the information
provided at Stage 1 pursuant to clause 9.10 of this Part A (General
Requirements, Rules and Provisions) prior to a Stage 2 Bid Submission Date
within the time period indicated in clause 10 (Timetable for Small Projects IPP
Procurement Programme) of this Part A (General Requirements, Rules and
Provisions).
9.12 A Bidder's Stage 1 Bid Submission will not be considered by the Department if a
Bidder fails to provide the Department with the information required by the
Department under clause 9.10 of this Part A (General Requirements, Rules and
Provisions) by the relevant Bid Registration Date.
9.13 Bidders may only submit Bid Responses to the Department on the date and time
that the Department notifies Bidders that the Bid Submission venue will be open
to accept Bid Responses in respect of a Bid submission Phase. The Bid
Responses in respect of each Bid Submission Date will only be opened on the
relevant Bid Submission Date.
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9.14 As set out in clause 5.1.4, the Small Projects IPP Procurement Programme will
be conducted in 2 (two) stages, Stage 1 and then Stage 2. The 2 (two) stage
approach allows the Department to evaluate comparatively only those Bid
Responses that are technically and commercially viable at Stage 2, therefore,
making the evaluation of Bid Responses more efficient, and saving the
Department and the Bidders time and costs.
9.15 A Bidder, that submits a Stage 1 Bid Submission at the relevant Bid Submission
Date, will only have the opportunity to prepare and submit its Stage 2 Bid
Submission if that Bidder fulfils all the requirements of the Stage 1 Qualification
Criteria and if that Bidder is awarded Selected Bidder status by the Department.
9.16 A Selected Bidder, may prepare and submit its Stage 2 Bid Submission in
respect of the Stage 2 Qualification Criteria set out in Part C (Stage 2
Qualification Criteria) and the Stage 2 Evaluation Criteria set out in Part D (Stage
2 Evaluation Criteria) of the RFP on any Stage 2 Bid Submission Date
subsequent to the Bidder being awarded Selected Bidder status.
9.17 In order for a Stage 1 Bid Submission to be a Stage 1 Compliant Bid Submission,
it must satisfy all of the Stage 1 Qualification Criteria specified in Part B (Stage 1
Qualification Criteria) of this RFP. After each Stage 1 Bid Submission Date, an
assessment of all submitted Stage 1 Bid Submissions against the Stage 1
Qualification Criteria specified in Part B (Stage 1 Qualification Criteria) will be
undertaken by the Department to determine whether or not each Stage 1 Bid
Submission is a Stage 1 Compliant Bid Submission. If a Bidder submits a
Stage 1 Compliant Bid Submission, the Department may, in its sole discretion,
and on such terms and conditions as the Department may determine, select that
Bidder as a Selected Bidder. Bidders who are not appointed as Selected Bidders
may submit a revised Stage 1 Bid Submission in respect of the same Project,
which was the subject matter of a previous unsuccessful Stage 1 Bid Submission,
by a subsequent Stage 1 Bid Submission Date, or may submit a new Stage 1 Bid
Submission in respect of a different Project, by a subsequent Stage 1 Bid
Submission Date.
9.18 In Stage 2, the Stage 2 Bid Submissions of the Selected Bidders will be assessed
in order to determine whether they are Stage 2 Compliant Bid Submissions. A
Stage 2 Compliant Bid Submission is one that meets or exceeds the
66
requirements in respect of every applicable Stage 2 Qualification Criterion set out
in Part C (Stage 2 Qualification Criteria).
9.19 If at any Stage 2 Bid Submission Date, there are insufficient Stage 2 Compliant
Bid Submissions to provide the maximum MW allocated to the relevant Stage 2
Bid Submission Phase, all the Bidders that have submitted Stage 2 Compliant
Bid Submissions may, in the Department's sole discretion, and on such terms
and conditions as the Department may determine, be appointed as Preferred
Bidders by the Department and might not be required to undergo a comparative
evaluation of the Stage 2 Compliant Bid Submissions as provided for in Part D
(Stage 2 Evaluation Criteria) of this RFP. The balance of available MW will be
added to the MW available for allocation to Bidders on the next Stage 2 Bid
Submission Date.
9.20 If the Department receives more Stage 2 Compliant Bid Submissions than are
required to provide the maximum MW allocated to any Technology, a
comparative evaluation will be done in accordance with the Stage 2 Evaluation
Criteria set out in Part D (Stage 2 Evaluation Criteria) of the RFP in respect of
each Technology in order to score and rank the Stage 2 Compliant Bid
Submissions submitted in respect of each Technology.
9.21 The Selected Bidders' whose Bid Responses rank the highest may, in the
Department’s sole discretion, be considered for appointment as Preferred
Bidders on such terms and conditions as the Department may determine. The
Department may appoint as many Preferred Bidders as are required to provide
the maximum available allocation of MW for a Technology. However, the
Department may elect either to appoint or not to appoint as a Preferred Bidder a
Bidder whose Project is the last ranked Project within the maximum available
allocation of MW for a Technology, if the Project size is such that it goes over the
maximum available allocation of MW for a Technology. Selected Bidders who are
not appointed as Preferred Bidders may submit a revised Stage 2 Bid
Submission in respect of the same Project, which was the subject matter of a
previous unsuccessful Stage 2 Bid Submission, by a subsequent Stage 2 Bid
Submission Date, but they may not submit a new Stage 2 Bid Submission in
respect of a different Project.
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9.22 If, at the relevant Bid Submission Date, there are Stage 2 Compliant Bid
Submissions relating to a number of Projects all intending to connect to a
common substation:
9.22.1 which Stage 2 Compliant Bid Submissions:
9.22.1.1 would fall to be considered for appointment as Preferred Bidders; or
9.22.1.2 having undergone a comparative evaluation as provided for in Part D
(Stage 2 Evaluation Criteria) of the RFP, would fall to be considered
for appointment as Preferred Bidders, as contemplated in clause 9.21
of this Part A (General Requirements, Rules and Provisions) of the
RFP; and
9.22.2 where the available capacity of such substation, or the distribution lines
associated with that substation, is insufficient to accommodate all of the
affected Projects,
9.22.3 then the Department, having consulted with the Eskom Grid Access Unit or
the relevant municipality, as applicable, to confirm the non-availability of
such capacity, may, in its sole discretion, comparatively evaluate the
affected Stage 2 Compliant Bid Submissions which are competing for the
limited capacity of the particular substation, or the grid-lines associated with
that substation (“Competing Compliant Bidders”), in accordance with the
methodology provided in the Stage 2 Evaluation Criteria specified in Part D
(Stage 2 Evaluation Criteria) of this RFP in order to score and rank those
Competing Compliant Bid Submissions relative to each other. Competing
Compliant Bidders whose Stage 2 Compliant Bid Submissions rank the
highest will be considered for appointment as Preferred Bidders up to the
capacity available at the substation or on the grid-lines associated with the
substation. The Department reserves the right to not appoint as Preferred
Bidder those Competing Compliant Bidders whose Stage 2 Compliant Bid
Submissions rank lower than those which take up the available substation
or associated grid-line capacity.
9.22.4 If the points difference between two Competing Compliant Bid Submissions
after the Part D evaluation undertaken in accordance with clause 9.20 of
this Part A (General Requirements, Rules and Provisions) is less than two
points, and only one of these Bidders could be a Preferred Bidder, the two
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Bidders in question may, in the Department's sole discretion, be invited to
tender a best and final offer ("BAFO"). The Bidders will be under no
obligation to revise their Bid Responses, and should neither Bidder choose
to submit a BAFO, then the original results will stand. Any BAFO Bid
Response will be evaluated in accordance with the Stage 2 Evaluation
Criteria or such other criteria as may be determined by the Department, in
its sole discretion, at the relevant time. The BAFO process will only be
used to select the best Bid Response between the Bid Responses
intending to connect to an oversubscribed substation, and will not affect the
evaluation and selection of other Bidders.
9.23 If the maximum available MW allocation for a Technology is taken up by the
Preferred Bidders or the Department considers that the MW available for
allocation are insufficient to allow for adequate competition, there will be no
succeeding Bid Submission Date in respect of that Technology, unless additional
MW are allocated to the relevant Technology by the Department, or through a
new or amended determination in terms of section 34 of the Electricity Regulation
Act.
9.24 Preferred Bidders will at all times, be held to, and be required to comply with the
Price and Economic Development proposals that they submit in their Stage 2 Bid
Submissions, even if there is no Part D (Stage 2 Evaluation Criteria) evaluation.
The Implementation Agreement and PPA will be entered into with a Preferred
Bidder on the basis of the Price and Economic Development proposals made in
the Bidder's Bid Response, subject only to such adjustments as are explicitly
provided for in this RFP or are approved by the Department in writing in
accordance with the process set out in clause 19 of Part A of this RFP.
9.25 The Department will notify Bidders of their appointment as Preferred Bidders per
Technology, or otherwise, as and when the Department selects Bidders as
Preferred Bidders.
10. Timetable for Small Projects IPP Procurement Programme
The dates included in the timetable in respect of Third and Fourth Stage 2 Bid
Submission Phases are indicative in nature and will be confirmed by the Department by
the issue of a Briefing Note after the Second Stage 2 Bid Submission Phase.
69
Milestone Anticipated Date
Department to issue final version of RFP 21 August 2013
First Bidders' Conference To be advised
Stage 1
Milestone in respect of First Stage 1 Anticipated Date
Bid Registration Date 16 September 2013
Last date for Bidders to submit written questions in
terms of clause 30 (Time for requests and
clarifications) of this Part A
14 September 2013
Last date for Department to issue Briefing Notes in
terms of clause 43 (Briefing Notes and Changes to
bid process) of this Part A
30 September 2013
First Stage 1 Bid Submission Phase
First Stage 1 Bid Submission Date 14 October 2013
Evaluation of Stage 1 Bid Submissions submitted in
response to the First Stage 1 Bid Submission Date
15 October 2013 – 11
November 2013
Announcement of Selected Bidders in respect of
First Stage 1 Bid Submission Date from
29 November 2013
Selected Bidders to prepare their Stage 2 Bid
Submissions in accordance with Part C and Part D
of the RFP from
30 November 2013
Milestone in respect of Second Stage 1 Date
Bid Registration Date 13 January 2014
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Last date for Bidders to submit written questions in
terms of clause 30 (Time for requests and
clarifications) of this Part A
10 January 2014
Last date for Department to issue Briefing Notes in
terms of clause 43 (Briefing Notes and Changes to
bid process) of this Part A
27 January 2014
Second Stage 1 Bid Submission Phase
Second Stage 1 Bid Submission Date 10 February 2014
Evaluation of Stage 1 Bid Submission submitted in
response to the Second Stage 1 Bid Submission
Date
11 February 2014 – 10 March
2014
Announcement of Selected Bidders in respect of
Second Stage 1 Bid Submission Date from
28 March 2014
Selected Bidders to prepare their Stage 2 Bid
Submissions in accordance with Part C and Part D
of the RFP from
29 March 2014
Milestone in respect of Third Stage 1 Date
Bid Registration Date 16 June 2014
Last date for Bidders to submit written questions in
terms of clause 30 (Time for requests and
clarifications) of this Part A
13 June 2014
Last date for Department to issue Briefing Notes in
terms of clause 43 (Briefing Notes and Changes to
bid process) of this Part A
30 June 2014
Third Stage 1 Bid Submission Phase
Third Stage 1 Bid Submission Date 14 July 2014
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Evaluation of Stage 1 Bid Submission submitted in
response to the Third Stage 1 Bid Submission Date
15 July 2014 – 11 August
2014
Announcement of Selected Bidders in respect of
Third Stage 1 Bid Submission Date
29 August 2014
Selected Bidders to prepare their Stage 2 Bid
Submissions in accordance with Part C and Part D
of the RFP from
30 August 2014
Milestone in respect of Fourth Stage 1 Date
Bid Registration Date 12 January 2015
Last date for Bidders to submit written questions in
terms of clause 30 (Time for requests and
clarifications) of this Part A
9 January 2015
Last date for Department to issue Briefing Notes in
terms of clause 43 (Briefing Notes and Changes to
bid process) of this Part A
26 January 2015
Fourth Stage 1 Bid Submission Phase
Fourth Stage 1 Bid Submission Date 09 February 2015
Evaluation of Stage 1 Bid Submission submitted in
response to the Fourth Stage 1 Bid Submission
Date
10 February 2015 – 09 March
2015
Announcement of Selected Bidders in respect of
Fourth Stage 1 Bid Submission Date from
27 March 2015
Selected Bidders to prepare their Stage 2 Bid
Submissions in accordance with Part C and Part D
of the RFP from
28 March 2015
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STAGE 2
Bid Registration Date 17 March 2014
First Stage 2 Bid Submission Date 14 April 2014
Evaluation of Stage 2 Bid Submissions submitted in
response to the First Stage 2 Bid Submission Date
15 April 2014 – 26 May 2014
Announcement of Preferred Bidders in respect of
First Stage 2 Bid Submission Date
17 June 2014
Application for a budget quotation from a Grid
Provider, and NERSA generation licence, and
payment of budget quotation fee
Within two weeks of
appointment of Preferred Bidder
Preferred Bidders to finalise their contractual
arrangements with, inter alia, their Members,
Contractors, equipment suppliers, Lenders and Grid
Provider, and application by the Preferred Bidders
to obtain a budget quotation from a Grid Provider
and a generation licence from NERSA
18 June 2014 – 21 January
2015
Signing and effective date of PPAs, Direct
Agreements, Implementation Agreements, and
Connection Agreements and Financial Close not
later than
21 January 2015
Second Stage 2 Bid Submission Phase
Bid Registration Date 23 February 2015
Second Stage 2 Bid Submission Date 23 March 2015
Evaluation of Stage 2 Bid Submissions submitted in
response to the Second Stage 2 Bid Submission
Date
24 March 2015 – 04 May 2015
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Announcement of Preferred Bidders in respect of
Second Stage 2 Bid Submission Date
25 May 2015
Application for a budget quotation from a Grid
Provider, and NERSA generation licence, and
payment of budget quotation fee
Within two weeks of
appointment of Preferred Bidder
Preferred Bidders to finalise their contractual
arrangements with, inter alia, their Members,
Contractors, equipment suppliers, Lenders and Grid
Provider, and application by the Preferred Bidders
to obtain a budget quotation from a Grid Provider
and a generation licence from NERSA
26 May 2015 – 08 December
2015
Signing and effective date of PPAs, Direct
Agreements, Implementation Agreements, and
Connection Agreements and Financial Close not
later than
08 December 2015
Indicative Third Stage 2 Bid Submission Phase
Bid Registration Date 4 May 2015
Third Stage 2 Bid Submission Date 01 June 2015
Evaluation of Stage 2 Bid Submissions submitted in
response to the Third Stage 2 Bid Submission Date
02 June 2015 – 13 July 2015
Announcement of Preferred Bidders in respect of
Third Stage 2 Bid Submission Date
03 August 2015
Application for a budget quotation from a Grid
Provider, and NERSA generation licence, and
payment of budget quotation fee
Within two weeks of
appointment of Preferred Bidder
Preferred Bidders to finalise their contractual
arrangements with, inter alia, their Members,
Contractors, equipment suppliers, Lenders and Grid
04 August 2015 – 09 March
2016
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Provider, and application by the Preferred Bidders
to obtain a budget quotation from a Grid Provider
and a generation licence from NERSA
Signing and effective date of PPAs, Direct
Agreements, Implementation Agreements, and
Connection Agreements and Financial Close not
later than
09 March 2016
Indicative Fourth Stage 2 Bid Submission Phase
Bid Registration Date 29 February 2016
Fourth Stage 2 Bid Submission Date 21 March 2016
Evaluation of Stage 2 Bid Submissions submitted in
response to the Fourth Stage 2 Bid Submission
Date
22 March 2016 – 02 May 2016
Announcement of Preferred Bidders in respect of
Fourth Stage 2 Bid Submission Date
23 May 2016
Application for a budget quotation from a Grid
Provider, and NERSA generation licence, and
payment of budget quotation fee
Within two weeks of
appointment of Preferred Bidder
Preferred Bidders to finalise their contractual
arrangements with, inter alia, their Members,
Contractors, equipment suppliers, Lenders and Grid
Provider, and application by the Preferred Bidders
to obtain a budget quotation from a Grid Provider
and a generation licence from NERSA
24 May 2016 – 07 December
2016
Signing and effective date of PPAs, Direct
Agreements, Implementation Agreements, and
Connection Agreements and Financial Close not
later than
07 December 2016
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11. Governing Law, Competition and other Statutory Requirements
11.1 Governing Law
11.1.1 The primary enabling legislation for the Small Projects IPP Procurement
Programme is the Electricity Regulation Act together with the New Gen
Regulations, and the IRP 2010, which should be read with the PFMA and
the Treasury Regulations. This enabling legislation regulates and creates
the competency of the Department to procure and implement the Small
Projects IPP Procurement Programme, and the manner in which it may
conduct the Small Projects IPP Procurement Programme.
11.1.2 The procurement of the Projects, responses, proposals, subsequent
documents, the Implementation Agreement, the PPA, the Direct Agreement
and the Connection Agreements, are and will be governed by and
construed according to the laws of the Republic of South Africa.
11.1.3 Procurement of the Projects will be carried out in accordance with the
following relevant legislation, which includes but is not limited to, the
Constitution of the Republic of South Africa, 108 of 1996, the Broad-based
Black Economic Empowerment Act, 53 of 2003, the Electricity Regulation
Act, the National Energy Regulator Act, 40 of 2004, the New Gen
Regulations, the PFMA, the Treasury Regulations, the Local Government,
Municipal Finance Management Act, 56 of 2003 and the Local
Government: Municipal Systems Act, 32 of 2000, each to the extent
applicable and subject to any lawful exemptions from any provision thereof.
11.1.4 As is set out above, the Department has obtained an exemption from the
National Treasury relating to the application of the Preferential Procurement
Policy Framework Act to the Small Projects IPP Procurement Programme.
A copy of such exemption is provided in Volume 1, Part 1 (Legal Notices,
Government Policies and Background Documents) as Schedule 5
(Exemption from the Preferential Procurement Policy Framework Act).
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11.2 Competition Act, 89 of 1998
Each Bidder must satisfy itself that its Project or any aspect of it is not a notifiable
transaction as contemplated under the Competition Act, 89 of 1998 and, to the
extent that it is a notifiable transaction, that all necessary requirements to comply
with the provisions of the Competition Act, 89 of 1998 have been complied with or
will be complied with by it prior to the signature of the PPA, Implementation
Agreement, Direct Agreement and Connection Agreements.
11.3 Other statutory requirements
The Bidder (including its Contractors and its Members), its Lenders (if any) and
its Legal Advisors are required to satisfy themselves as to the compliance with all
other statutory and legal requirements in relation to the Bidder's Project or any
aspect thereof.
12. Small Projects IPP Procurement Programme Economic Development Objectives
and Requirements
12.1 Background to the Formulation of the Department’s Objectives for the
Small Projects IPP Procurement Programme
12.1.1 The Department recognises that the Small Projects IPP Procurement
Programme is inherently excellent for achieving socio-economic objectives.
Economic Development is one of the imperatives of the Department in the
Small Projects IPP Procurement Programme.
12.1.2 Renewable Energy is recognised internationally as a major contributor in
protecting our climate, nature and the environment as well as providing a
wide range of environmental, economic and social benefits that will
contribute towards long term global sustainability. For this reason, the
Department has developed the Economic Development objectives aimed at
maximising the achievement of the socio-economic objectives from the
Small Projects IPP Procurement Programme.
12.1.3 In developing the Economic Development objectives, the Department has
considered the following legislation and policy instruments of Government,
relevant to Economic Development:
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No. Legislation /
Policy(ies)
Imperative(s)
1. Constitution of the Republic of South Africa, 108 of 1996 ("Constitution")
Section 217(2) of the Constitution provides that organs of state are not prevented by the requirements of open and competitive tender process from implementing procurement policies providing for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons disadvantaged by unfair discrimination.
Section 217(3) of the Constitution further states that national legislation was to be enacted to prescribe a framework within which policies referred to in section 217(2) must be implemented.
2. Broad-based Black Economic Empowerment Act, 53 of 2003 ("BBBEE Act")
Section 10(1) states that every organ of state must take into account and, as far as is reasonably possible, apply any relevant code of good practice issued in terms of the BBBEE Act in developing criteria for entering into partnerships with the private sector.
3. BBBEE Codes of Good Practice published pursuant to the BBBEE Act, 2007 ("BBBEE Codes")
These codes were applied in the IPP Procurement Programme, as far as reasonably possible and the following elements were taken into account:
• ownership;
• management control;
• preferential procurement;
• enterprise development; and
• socio-economic development.
4. National Small Enterprise Act 102 of 1996 ("National Small Enterprise Act")
This Act aims to, amongst other things, provide guidelines for organs of state in order to promote SME’s in the Republic. This Act not only defines SME’s but also, in it’s Schedule, sets out the classifications of SME’s into:
• micro enterprises;
• small enterprises; and
• medium enterprises.
5. White Paper on Renewable Energy, 2003 ("White Paper")
There is a recognition in the White Paper that the emergence of the Renewable Energy industry provides potential for empowerment and job creation.
The White Paper also states that the job creation potential of the Renewable Energy industry lies not so much in the operation and maintenance of such facilities but rather in the manufacture of such technologies, as
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No. Legislation /
Policy(ies)
Imperative(s)
renewable energy technologies are labour intensive.
6. NERSA Application for an Electricity Generation Licence in terms of the Electricity Regulation Act, 2006 ("Application for an Electricity Generation Licence")
In terms of section J to the Application for an Electricity Generation Licence, NERSA, in relation to BBBEE looks at the following:
• black ownership;
• black management, black female management and skilled Black People;
• skills development and employment equity;
• preferential procurement;
• enterprise development; and
• industry specific initiatives to facilitate the inclusion of Black People in the sector.
7. New Growth Path published by the Department of Economic Development ("NGP")
The NGP makes calls for an intense focus on broad based elements of the BBBEE regulations - ownership by communities and workers, increased skills development and career pathing for all working people - and a new emphasis on procurement from local producers in order to support employment creation.
The job drivers identified by the NGP include the following, which have a relevance in the IPP Procurement Programme:
• substantial public investment in infrastructure both to create employment directly in construction, operation and maintenance;
• targeting more labour-absorbing activities across the main economic sectors, which include manufacturing and services; and
• taking advantage of new opportunities in the knowledge and green economies.
The NGP states that creating more and better jobs must lie at the heart of the strategy to fight poverty, reduce inequalities and address rural underdevelopment.
The NGP also states that basic and secondary education play a critical role in long-run equality, access to employment and competitiveness.
8. Accelerated Shared Growth Initiative of South Africa (“ASGI-SA")
ASGI-SA aims to create sustainable economic growth, where the wealth is shared
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No. Legislation /
Policy(ies)
Imperative(s)
9. National Industrial Policy Framework ("NIPF")
The NIPF aims to provide strategic direction to the economy in respect of industrial development. This is to be done by providing greater clarity and certainty to the private sector and social partners about investment decisions leading up to 2014 and beyond, and by providing a reference point for substantial improvements in intra-governmental coordination of the numerous set of policies and projects that will form part of the NIPF.
The objectives of the NIPF include the promotion of a broader-based industrialisation path characterised by greater participation at all levels by historically disadvantaged citizens and marginalised regions in the mainstream of the industrial economy.
10. Industrial Policy Action Plan 2011/12 – 2013/14 ("IPAP")
The aim of IPAP is to identify existing economic growth constraints (within the existing legislative and policy framework) and provide solutions thereto, as well as opportunities that Government could capitalise upon.
The objectives of IPAP include increased local manufacture, skills development and employment creation. IPAP also focuses on, inter alia, employment creation, the manufacturing aspects of the green economy and the localisation of manufacturing related to Renewable Energy.
11. The National Development Plan
The National Development Plan:
• proposes the promotion of employment in labour-absorbing industries and promote manufacturing in areas of competitive advantage;
• seeks to reduce the unemployment rate from 27% to 14% in 2020 and to 6% by 2030; and
• seeks the leveraging of public procurement to promote localisation and industrial diversification.
12. Local Procurement Accord
The objective of the Local Procurement Accord is to accelerate the creation of 5 million new jobs by 2020 as well as achieve the goals of IPAP. The Local Procurement Accord commits the social partners to achieving 75% localisation in the procurement of goods and services by both the public and private sectors.
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12.1.4 In developing the Economic Development objectives for the Small Projects
IPP Procurement Programme, some of the socio-economic challenges
facing South Africa were also taken into account. These include, the:
12.1.4.1 high rate of unemployment in South Africa;
12.1.4.2 lack of education of South Africans; and
12.1.4.3 lack of skilled workers.
12.1.5 In trying to address the legislation, policies and socio-economic conditions
in South Africa described above, the Department has determined the
following objectives for its specific goals in the Small Projects IPP
Procurement Programme:
12.1.5.1 job creation;
12.1.5.2 local content through, inter alia, increased local manufacturing;
12.1.5.3 fostering rural development and involving communities in the Small
Projects IPP Procurement Programme;
12.1.5.4 education and the development of skills;
12.1.5.5 enterprise development through the promotion of Black Enterprises
and empowered enterprises;
12.1.5.6 socio-economic development;
12.1.5.7 participation and shareholding by SMEs; and
12.1.5.8 participation by historically disadvantaged citizens and marginalised
regions in the mainstream of the industrial economy.
12.1.6 Small Projects IPP Procurement Programme Economic Development
Policy
12.1.6.1 The Department developed the IPP Procurement Programme
Economic Development Policy, in respect of the IPP Procurement
Programme. A similar Economic Development policy has been
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prepared for the Small Projects IPP Procurement Programme, taking
into regard the specific objectives of the Small Projects IPP
Procurement Programme. This is due to the fact that the majority of
the objectives and elements of the Department, in relation to
Economic Development, remain the same in respect of the Small
Projects IPP Procurement Programme as for the IPP Procurement
Programme.
12.1.6.2 The Economic Development elements will be evaluated within the
maximum 30 (thirty) points, using the scoring matrix developed for
this Small Projects IPP Procurement Programme.
12.1.6.3 The Department developed Economic Development elements for the
Small Projects IPP Procurement Programme, using as a basis for
developing the elements the BBBEE Codes by mainly following the
format of such codes in structuring the requirements and identifying
5 (five) of the 7 (seven) Economic Development elements. The
rationale behind adopting only 5 (five) of the 7 (seven) elements from
the BBBEE Codes is that compliance with employment equity and
skills development are required by operation of law in terms of the
Employment Equity Act, 55 of 1998 and the Skills Development Act,
97 of 1998.
12.1.6.4 It has been recognised that the BBBEE Codes are structured to verify
BBBEE credentials on a historical basis in respect of measured
entities. However, the Economic Development elements in the Small
Projects IPP Procurement Programme objectives have been
structured and adapted to achieve a forward looking approach in
addition to historical considerations.
12.1.7 The Small Projects IPP Procurement Programme also requires that the
Economic Development commitments of the Bidders be contractually
binding and contemplates that they be dealt with in the Implementation
Agreement. Bidders must note that there will be reporting and monitoring in
relation to Economic Development commitments. Economic Development
Elements
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12.1.7.1 The following elements have been formulated to address the
objectives of the Department:
12.1.7.1.1 job creation, which places emphasis on jobs for South African
citizens, South African citizens who are Black People and South
African citizens from Local Communities. It must be noted that
the Department seeks to incentivise Bidders to make
commitments which are as high as possible in relation to this
element and, as such, Bidders will be required to indicate the
total number of jobs per MW in Person Months;
12.1.7.1.2 local content, which requires that a certain percentage of the
total value of the Project be spent in South Africa;
12.1.7.1.3 ownership, which requires ownership by Black People and
Local Communities in the Project Company, and ownership by
Black People in the Contractor responsible for Construction and
the Operations Contractor;
12.1.7.1.4 black management, which focuses on the involvement of Black
People in management;
12.1.7.1.5 preferential procurement, which focuses on subcontracting to
empowered enterprises, Black Enterprises and enterprises
owned by women;
12.1.7.1.6 enterprise development, which focuses on the development of
emerging enterprises, and those emerging enterprises located
in Local Communities;
12.1.7.1.7 socio-economic development, which attempts to address the
socio-economic needs of Local Communities; and
12.1.7.1.8 SME participation, which focuses on the involvement and
development of SMEs and new developers in the Renewable
Energy sector.
12.1.8 Structure of Economic Development Requirements
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12.1.8.1 The requirements for Economic Development are contained in
different parts of the RFP, namely:
12.1.8.1.1 Clause 2.5 (Economic Development Criteria and Evaluation) of
Part B (Stage 1 Qualification Criteria) – which requires a Bidder
to:
12.1.8.1.1.1 indicate the anticipated level of compliance in relation to
South African Entity Participation;
12.1.8.1.1.2 indicate the anticipated level of compliance in relation to
shareholding by SMEs in the Project Company;
12.1.8.1.1.3 indicate the Contributor Status Level in respect of each of
the Shareholders of the Project Company as well as the
Project Company itself, where available; and provide its
track record (or that of its Members) in implementing
plans and programmes in relation to the following:
12.1.8.1.1.3.1 Preferential Procurement;
12.1.8.1.1.3.2 Enterprise Development; and
12.1.8.1.1.3.3 Socio-Economic Development; and
12.1.8.1.1.4 indicate the extent of Local Content anticipated to be
achieved in the Programme.
12.1.8.1.2 Clause 2.7 (Economic Development Criteria and Evaluation) of
Part C (Stage 2 Qualification Criteria) – which requires a Bidder
to:
12.1.8.1.2.1 have an initial South African Entity Participation of
40% (forty percent), which after a period of no more than
one third of the Scheduled Operating Period of the PPA3
should have increased to 60% (sixty percent);
3 This period to be determined based on the Bid Response of the Bidder
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12.1.8.1.2.2 have an initial shareholding by SMEs of 10% (ten
percent), which after a period of no more than one third of
the Scheduled Operating Period of the PPA4 should have
increased to 30% (thirty percent);
12.1.8.1.2.3 have a weighted Contributor Status Level of 5 in respect
of the South African Entity Participation; and
12.1.8.1.2.4 comply with the minimum thresholds as indicated in the
Economic Development Scorecard;
12.1.8.1.3 Volume 5 (Economic Development Requirements) – which
requires a Bidder to submit a detailed proposal on Economic
Development Elements, which will be scored against the
Economic Development Scorecard of the Department; and
12.1.8.1.4 The Implementation Agreement, specifically Schedule 2
(Economic Development Obligations), which seeks to
contractually commit a Bidder to the commitments made in the
Economic Development proposal submitted as part of the Bid
Response.
12.1.9 Implementation Agreement Economic Development Commitments
12.1.9.1 In Schedule 2 (Economic Development Obligations) of the
Implementation Agreement, the Seller will be held to the levels of
Economic Development that it has proposed in its Bid Response.
These are dealt with as Economic Development obligations.
12.1.9.2 The Seller’s obligations are subject to reporting and to a review on a
periodic basis and to the extent that it has not met the Economic
Development obligations in a contract quarter, it will be subject to
penalties in the form of Economic Development Performance
Deductions ("EDPD"). To the extent that the Seller has exceeded the
agreed Economic Development obligations, the Seller will earn
credits through Economic Development Performance Credits
("EDPC"). At the end of the Construction Measurement Period and
4 This period to be determined based on the Bid Response of the Bidder
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annually during the Operating Measurement Period, there will be a
reconciliation of the EDPD and EDPC to determine whether there are
penalties payable by the Seller.
12.1.9.3 In terms of the Implementation Agreement certain excessive levels of
non-compliance with Economic Development obligations in a contract
quarter will trigger Termination Points, which could ultimately lead to
the Department’s right of termination of the Implementation
Agreement. Each Termination Point is subject to adequate remedy
provisions to avoid such termination.
12.1.9.4 The Seller is required to monitor, audit and record in an auditable
manner its implementation of and compliance with Schedule 2
(Economic Development Obligations) of the Implementation
Agreement.
13. Environmental Consents and Land Use Consent Considerations
13.1 The Stage 2 Qualification Criteria in respect of Land Use Consents, land
acquisition and Environmental Consents are contained in clauses 2.3
(Stage 2 Land Acquisition and Land Use Consents Criteria and Evaluation) and
clause 2.4 (Stage 2 Environmental Consents Criteria and Evaluation) of Part C
(Stage 2 Qualification Criteria), respectively. Schedule 6 (General Overview of
Environmental and Land Use Consents) in Volume 1, Part 1 (Legal Notices,
Government Policies and Background Documents), provided to bidders under the
IPP Procurement Programme, has been included in Volume 1, Part 1 of this RFP
to assist and provide guidance to Bidders under this Small Projects IPP
Procurement Programme. Schedule 6 (General Overview of Environmental and
Land Use Consents) provides information about the Environmental Consents and
Land Use Consents which are likely to be required in respect of each type of
Technology. It also provides an indication of the evidence that is likely to be
regarded by the Department as acceptable evidence that the Bidder has the
required Environmental Consent or Land Use Consent in place. Schedule 7
(Procedure for obtaining non-binding confirmation by DWA of water availability on
request from bidders in the IPP Procurement Programme) in Volume 1, Part 1
(Legal Notices, Government Policies and Background Documents), also used in
the IPP Procurement Programme, has been included in Volume 1, Part 1 of this
RFP to assist and provide guidance to Bidders under this Small Projects IPP
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Procurement Programme. Schedule 7 (Procedure for obtaining non-binding
confirmation by DWA of water availability on request from bidders in the Small
Projects IPP Procurement Programme) provides information on how Bidders can
approach DWA in regard to confirmation of water availability.
13.2 Please note, however, that each Bidder bears full responsibility for ascertaining
the water availability in relation to its Project, and for determining which
Environmental and or Land Use Consents are required for its Project and cannot
rely exclusively on the procedure set out in Schedule 7 (Procedure for obtaining
non-binding confirmation by DWA of water availability on request from bidders in
the Small Projects IPP Procurement Programme) or on the inclusion or absence
of an Environmental and Land Use Consent from the relevant table in Schedule 6
(General Overview of Environmental and Land Use Consents) found in Volume 1,
Part 1 (Legal Notices, Government Policies and Background Documents) as
indicative of whether or not a particular Environmental Consent and Land Use
Consent is required for a particular Project or class of Projects.
13.3 The conflict between the potential of agricultural land for production purposes
and food security, versus the pressure for land that can be used for Renewable
Energy purposes, makes heavy demands on the availability of land. The
Department of Agriculture, Forestry and Fisheries ("DAFF") has the mandate to
protect and manage the natural agricultural resource base of the country through
legislation, acts and policies. In accordance with its mandate, DAFF has
established a National Policy on the Preservation of Agricultural Land which can
be found at Schedule 8 (National Policy on the Preservation of Agricultural Land)
in Volume 1, Part 1 (Legal Notices, Government Policies and Background
Documents) of this RFP. DAFF has also prepared draft Regulations for the
evaluation and review of applications pertaining to wind farming on agricultural
land, which can be found in Volume 1, Part 1 (Legal Notices, Government
Policies and Background Documents) as Schedule 9 (Regulations for the
Evaluation and Review of Applications pertaining to Wind Farming on Agricultural
Land). These draft Regulations and the National Policy on the Preservation of
Agricultural Land will assist Bidders in understanding the constraints imposed on
the use of agricultural land as a Project Site and the steps that must be taken by
Bidders in order to obtain Land Use Consents on agricultural land.
13.4 The Department of Water Affairs has advised the Department that it will only
consider applications for water use licences made by Selected Bidders once
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Selected Bidders are appointed as Preferred Bidders by the Department. For this
reason, a Preferred Bidder which, due to no fault, negligence or contributory
negligence of its own, does not have a water use licence (if it is required for the
Technology as a Stage 2 Qualification Criteria in terms of clause 2.4 (Stage 2
Environmental Consent Criteria and Evaluation) in Part C (Stage 2 Qualification
Criteria) to have such a licence) at the date specified for signature of the PPA,
Implementation Agreement, Direct Agreement and the Connection Agreements
or whose water use licence is, at that date, the subject of any appeal, review
proceedings or other legal challenge, will, in the Department's sole discretion, be
afforded an extension of time to obtain the water use licence prior to the signing
of the PPA, Implementation Agreement, Direct Agreement and the Connection
Agreements. Therefore, to the extent necessary, the period set out in clause 10
(Timetable of the Small Projects IPP Procurement Programme) of this Part A
(General Requirements, Rules and Provisions), from appointment of the Bidder
as Preferred Bidder to signature of the PPA, Implementation Agreement, Direct
Agreement and the Connection Agreements will be extended by the Department
to a period that is reasonable in the circumstances.
14. Connection to, and use of, the Distribution System
14.1 A Bidder may not connect its Facility to the Transmission System in respect of
the Small Projects IPP Procurement Programme. Therefore, the Grid Provider
will either be the “Distribution” business unit of Eskom, or a municipality,
depending on the location of the point of connection.
14.2 The Preferred Bidder whose Facility is to be connected to the Eskom Distribution
System will be required, in its capacity as a Customer of Eskom, to conclude an
Eskom Distribution Agreement with the Distributor prior to or simultaneously with
the conclusion of the PPA. A copy of the Eskom Distribution Agreement to be
entered into between the Project Company of the Preferred Bidder and the
Distributor is attached to this RFP in Volume 2 (Legal Agreements) as Appendix
D (Eskom Distribution Agreement).
14.3 In instances where Eskom will buy energy from a Seller under a PPA and that
Seller's Facility is located within a municipal supply area, Eskom will purchase
the energy from the Seller and then sell it to the municipal Distributor without
physically taking delivery of the energy (the energy is delivered directly from the
Seller to the Municipal Distribution System). It is therefore necessary to account
88
for this additional sales transaction in Eskom's invoice to the municipality in
respect of electricity supplied by Eskom to the municipality. This is to be
regulated by an Amendment Agreement to the Electricity Supply Agreement.
The Amendment Agreement to the Electricity Supply Agreement will be based on
the pro-forma "Amendment Agreement to the Electricity Supply Agreement where
Eskom has entered into a Power Purchase Agreement with a generator of supply
connected to the network of the municipality, ref SC 0401 (GEN Recon)".
Bidders may request a copy of the pro-forma Amendment Agreement to the
Electricity Supply Agreement from Eskom. The final Amendment Agreement to
the Electricity Supply Agreement will be dependent on the terms contained in the
existing Electricity Supply Agreement with the relevant municipality. Bidders are
required to take note that the entry into an Amendment Agreement to the
Electricity Supply Agreement will be a condition to signature of the PPA by
Eskom as the Buyer.
14.4 The Bidder whose Facility is to be connected to the Municipal Distribution System
will be required:
14.4.1 in its capacity as a Customer of the relevant municipal Distributor, to
conclude a municipal distribution agreement with the Distributor prior to or
simultaneously with the conclusion of the PPA. A copy of a pro-forma
Municipal Distribution Agreement for information purposes is attached to
this RFP as Schedule 10 (Pro-forma Municipal Distribution Agreement) in
Volume 1, Part 1 (Legal Notices, Government Policies and Background
Documents);
14.4.2 to provide the Department with proof that an Electricity Supply Agreement
has been entered into between Eskom and the relevant municipal
Distributor and that the terms of the Amendment Agreement to the
Electricity Supply Agreement have been agreed upon by the municipal
Distributor and Eskom at the time that the Bidder submits its Stage 2 Bid
Submission. This requirement will be fulfilled by the Bidder by submitting,
as part of its Stage 2 Bid Submission, the Bidder confirmation and
supporting declarations contained in Schedule 31 (Confirmation of an
Electricity Supply Agreement) of Volume 1, Part 3;
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14.4.3 prior to signature of that Bidder's PPA, to ensure that an Amendment
Agreement to the Electricity Supply Agreement has been entered into
between Eskom and the relevant municipal Distributor; and
14.4.4 to provide the Department with a declaration from the municipal Distributor
in which the municipal Distributor confirms that it has reviewed and that the
Distributor accepts the terms of the PPA included as Appendix A (Power
Purchase Agreement) of Volume 2 (Legal Agreements) of the RFP and, in
particular, that the municipal Distributor is aware of and accepts Eskom's
obligations as the Buyer in respect of system metering installation for the
Facility in terms of clause 12 of the PPA, which declaration is included in
Schedule 31 (Confirmation of an Electricity Supply Agreement) of Volume
1, Part 3.
14.5 Connection to the Distribution System is also regulated by the Codes and these
must be considered by Bidders in the development of their Projects.
14.6 The connection works required for the connection of the Facility to the System
will be split into the works for the dedicated customer connection of the Facility to
the System (referred to as the "shallow connection") and the connection works on
shared assets (usually referred to as the "deep connection").
14.7 There are three ways in which shallow connection works can be undertaken to
connect the Bidder's Facility to the System.
14.8 In the first instance, the Grid Provider is responsible for and undertakes the
connection works to connect each Unit physically to the relevant System, and the
Bidder pays the Grid Provider for undertaking the connection in accordance with
the cost estimate and budget quote provided by the Grid Provider. The Delivery
Point will be on the Project Site, on the high voltage side of the generation
transformer of the Facility.
14.9 In the second instance, the customer of the relevant Grid Provider is responsible
for and undertakes the connection works to connect each Unit physically to the
relevant System, and once completed the customer transfers the connection
works to the relevant Grid Provider in terms of an agreement with the Grid
Provider. This method of connection is commonly referred to as 'self build'. A
pro-forma Self-Build Agreement, issued in Volume 1, Part 1 (Legal Notices,
Government Policies and Background Documents) of this RFP as Schedule 12
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(Pro-forma Self Build Agreement), has been provided for information purposes
only and contains the terms and conditions that could be expected in the
agreement to be concluded by the Project Company and the relevant Grid
Provider. The Delivery Point will be on the Project Site, on the high voltage side
of the generation transformer of the Facility.
14.10 In the third instance, the customer of the relevant Grid Provider is responsible for
and undertakes the connection works to connect each Unit physically to the
relevant System, and the customer retains ownership of the connection works
once completed (commonly referred to as "own-build"). The Delivery Point may
be on or off the Project Site, at the high voltage yard or substation where the
Facility connects to the System. Bidders must be aware that, in this instance,
Bidders will be required to obtain a Distribution licence in terms of the Electricity
Regulation Act from the relevant Grid Provider in order to operate the shallow
connection to the System.
14.11 It is important for Bidders to note that Eskom has policies in respect of self-build if
Bidders are anticipating the second connection process explained in clause 14.9
of this Part A (General Requirements, Rules and Provisions).
14.12 Bidders are encouraged to approach the relevant Grid Provider to obtain clarity
and further information on the policies and requirements involved in connecting
the Facility to the System. The Department will consult with the Eskom Grid
Access Unit in the course of evaluating the Bid Responses to confirm the
availability of capacity at those substations and on the associated distribution and
transmission lines which Bidders indicate will be used to connect their Facility to
the System.
14.13 The Grid Provider will undertake a portion of the connection works in respect of
all 3 (three) processes for shallow connection detailed above, and therefore,
Bidders will be required to include the time and cost estimate letter for the
indicative time and cost for grid connection from the relevant Grid Provider in the
Stage 2 Bid Submission.
14.14 The relevant contact details, requirements for obtaining the time and cost
estimate letter from Eskom, the application form and the process for applying for
grid connection, can be obtained on Eskom’s website (www.eskom.co.za).
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14.15 The requirements for obtaining the time and cost estimate letter from a
municipality, and the process for applying for grid connection, can be obtained
from the municipality concerned. Self-build Projects in municipal areas need to
be negotiated and agreed with the respective municipality.
14.16 Bidders must apply to the relevant Grid Provider in sufficient time for the grid
connection time and cost estimate to be provided by the relevant Grid Provider.
Bidders are required to contact the relevant Grid Provider to ascertain what the
relevant deadlines and timeframes are in relation to their applications for the time
and cost estimate letter.
14.17 In their interactions with the relevant Distributor for the purposes of obtaining the
time and cost estimate letter and making a decision as to whether to proceed by
way of Eskom build, self-build or own-build (as described above), Bidders should
canvass fully those matters which could impact on a Bidder’s ability to obtain,
within 6 (six) months of appointment as a Preferred Bidder, a budget quote
which, if accepted, would allow the Distributor to proceed immediately with the
construction of the works needed for the connection. Such matters could include
the obtaining of rights of way or servitudes or Environmental Consents, the need
for long lead time materials and upstream reinforcement costs.
14.18 Bidders are required to note that in terms of the PPA, during the Early Operating
Period and the Operating Period, the Seller will sell all the Early Operating
Energy and Commercial Energy generated by a Unit or the Facility (as the case
may be) to the Buyer at the Delivery Point, on a self-despatch basis.
15. General Bid Rules
15.1 The RFP is open to the world wide public and is not restricted to Bidders
comprised only of Citizens and South African entities. However, all Sellers under
the PPAs will be required to be Project Companies that have a sole purpose,
object and business of undertaking the Bidder’s Project, including entering into
and fulfilling the purposes of the PPA, the Implementation Agreement, the Direct
Agreement and the Connection Agreements. Bidders are invited to submit Bid
Responses to be appointed as a Preferred Bidder, for consideration by the
Department.
15.2 If a Local Community will participate as a Member or as a shareholder (direct or
indirect) in a Member through a trust which has not yet been formed as at the
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applicable Bid Submission Date; or any other person or entity will participate as a
Member, or as a shareholder in a Member, which is an entity which has not been
incorporated as at the applicable Bid Submission Date, then the Lead Member or
Project Company, as the case may be, must submit written confirmation (a) that
the Local Community trust or the new entity, as the case may be, will be
established and registered as contemplated in the Bid Response, and (b) that the
Lead Member or Project Company, as the case may be, shall ensure that the
Local Community trust or new entity agrees to be bound by the Bid Response to
the same extent as it would have done if it were in existence at the Bid
Submission Date.
15.3 Where one or more equity participants will hold an ownership interest in the
Project Company through an intermediary entity which will be a Shareholder, but
which Shareholder is not yet incorporated at the Bid Submission Date, the equity
participants which will be the direct shareholders in that Shareholder once
established must each submit the returnable schedules of the RFP which are
applicable to Members, on behalf of that Member to be established.
15.4 In order to submit a Bid Response under this Small Projects IPP Procurement
Programme, each prospective Bidder will be required to pay a non-refundable fee
of R5 000 (five thousand Rand) per Bidder, and to complete a registration form.
The electronic registration form will be available for download on the Small
Projects IPP Website. The Department will only communicate and accept Bid
Responses from Bidders that have completed the electronic registration form and
have paid the required fee.
15.5 Each Bidder, in submitting a Bid Response, is deemed to do so on the basis that
it accepts and acknowledges the terms of this RFP.
15.6 Those Bidders appointed as Selected Bidders and or Preferred Bidders shall not
be entitled to negotiate any of the provisions of the PPA, the Direct Agreement,
the Implementation Agreement or the Connection Agreements issued with this
RFP, with the relevant counterparties, but the Preferred Bidders shall be afforded
a period of time, specified under clause 10 (Timetable for Small Projects IPP
Procurement Programme) of this Part A (General Requirements, Rules and
Provisions), to negotiate and finalise their other contractual arrangements and
Project Documents with, inter alia, their Members, Contractors, equipment
suppliers and Lenders and apply for and obtain their generation licence from
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NERSA and budget quotation from the Grid Provider in order to conclude the
Implementation Agreement, the PPA, the Direct Agreement and the Connection
Agreements with the relevant counterparties, by the date specified in the table
under clause 10 (Timetable for the Small Projects IPP Procurement Programme)
of this Part A (General Requirements, Rules and Provisions).
16. Non-Eligible Persons
16.1 Stage 1 Bid Submissions will only be considered by the Department, in its sole
discretion, if the Bidder submitting the relevant Stage 1 Bid Submission has the
necessary expertise and relevant experience to carry out the Project that is the
subject matter of the relevant Stage 1 Bid Submission, and specifically if the
Bidder satisfies the requirements specified in Part B (Stage 1 Qualification
Criteria) of this RFP.
16.2 The Department will only consider the Stage 2 Bid Submissions of those Bidders
that have been selected as Selected Bidders by the Department pursuant to the
relevant Stage 1 Bid Submission Date. Stage 2 Bid Submissions will only be
considered by the Department, in its sole discretion, if the Bidder submitting the
relevant Stage 2 Bid Submission has the necessary expertise, relevant
experience and or resources (including financial capacity and commitments) to
carry out the Project that is the subject matter of the relevant Stage 2 Bid
Submission, and specifically if the Bidder satisfies the requirements specified in
Part C (Stage 2 Qualification Criteria) and Part D (Stage 2 Evaluation Criteria) of
this RFP.
16.3 Any firm, group, organisation or consortium or any Member of a Bidder which is
not domiciled within the Republic of South Africa, or does not have an existing,
formal association with a South African firm or organisation, shall indicate this
fact clearly in its Bid Response.
16.4 Bidders are required to declare if any of their Advisors, Members or any individual
who is a director, officer, employee or shareholder of any Member or the Project
Company is or is Related to any employee of the Department or any other
member of the working group comprised of the DPE, the DTI, the National
Treasury, Eskom, NERSA, DAFF and the Department of Environmental Affairs,
by completing and submitting Schedule 19 (Declaration of Interest, Litigation and
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Past Supply Chain Practices Form) provided in Volume 1, Part 2 (Stage 1 Bid
Submission Returnable Schedules) of this RFP.
16.5 If any Bidder includes in their Bid Response the involvement of any person:
16.5.1 blacklisted by the office of National Treasury; or
16.5.2 blacklisted by such person’s professional body (if applicable); or
16.5.3 who is or who is Related to any employee of the Department or any other
member of the working group comprised of the DPE, the DTI, the National
Treasury, Eskom, NERSA, DAFF, and the Department of Environmental
Affairs; or
16.5.4 who is Related to any other Government official or person directly involved
presently or in the past in the Small Projects IPP Procurement Programme,
who may be involved or have been involved with the evaluation of the Bid
Responses and, any person with the ability to influence or to have
influenced the decision of the Department with respect to the appointment
of Selected Bidders and or Preferred Bidders; or
16.5.5 who or which has been found guilty in a court of law of fraud or corruption
related crimes,
such Bidder may, in the sole discretion of the Department, be disqualified by the
Department from participating in the relevant Bid Submission Phase and or from
any part or all of the Small Projects IPP Procurement Programme.
16.6 In respect of any person or Government Official who is or was involved in the
past in the IPP Procurement Programme or this Small Projects IPP Procurement
Programme, in the manner set out in clause 16.5.4, a Bidder should, to avoid the
consequence set out in clause 16.5, before submitting a Bid Response which
includes such person in any capacity set out in clause 16.4 above, obtain written
permission from the Department for the involvement of such person. In
considering any such request the Department shall have regard to (amongst
other things) the nature of the person’s involvement, the nature of the confidential
information regarding the IPP Procurement Programme and or this Small
Projects IPP Procurement Programme which the person has, and the time that
has elapsed since they had this involvement.
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16.7 The participation of not-for-profit entities in a Bid Response is in the discretion of
a Bidder and shall be at its sole risk.
16.8 No national public entity, provincial public entity (each as defined in the PFMA),
except for the DBSA and the IDC, may participate as a Member (directly or
indirectly) of, or Contractor to any Bidder, unless:
16.8.1 the participation of that public entity in the Small Projects IPP Procurement
Programme has been specifically approved in advance in writing by the
applicable Government department or executive authority (as defined in the
PFMA) that has responsibility over such public entity, and by the
Department;
16.8.2 the provision of services or participation as a Member, by such public
entity, is made available to all Bidders (subject to Bidders meeting the
public entity's criteria for service provision or participation as a
Member); and
16.8.3 the provision of services or participation as a Member by such public entity
is permitted by law.
16.9 A person, Contractor, Member, other participant in a Bid Response, Lender or
Advisor may participate in, advise or be involved (either directly or indirectly) with
more than one Bidder at any stage during the Small Projects IPP Procurement
Programme without the prior written consent of the Department. It shall be the
responsibility of each of the Bidders that utilise the services of the same
Contractor, Member, Lenders or Advisors as other Bidders, to manage the
process and any conflicts of interest that may arise. The Bidders shall ensure
that no anti-competitive or collusive behaviour is displayed or engaged in by any
person, Contractor, Member, Lender or Advisor participating or involved with
more than one Bidder. The Department shall, in its sole discretion, be entitled to
disqualify, in terms of clause 27 (Disqualification) of Part A (General
Requirements, Rules and Provisions) of this RFP, any Bidder whose Bid
Response display any anti-competitive or collusive behaviour.
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17. Use of Transaction Advisors by the Department and the Bidders
17.1 The Transaction Advisors are as follows:
Firm Individuals Role
SPP Project Solutions Darron Johnson
Mark Engelbrecht
Paul Wroblicki
Mike Fitzpatrick
Jonathan Leeb
Sandipha Maharaj
Adrian Miric
Gerhard Johan
Tanya Fainstein
Hloni Mrwebi
Thembi Mrwebi
Connie Ploger
Project Management and Financial Transaction Advisors
PriceWaterhouse Coopers Chris Siewierski
Vimal Vallabh
John Gibbs
Giles Dixon
Omkareshwar Pandey
Kameswara Rao
Reg Max
Alwyn Naidoo
James Aryaija
Alice Chang
Ross Dunlop
Elizabeth Ellis
Rubin Essakow
Kevin Green
Gregory Haddock
Ruth Hann
Nishka Harase
Harinath Prasad
Tendayi Jena
Rebecca Kang
Raymond Ledwaba
Paul Lerotholi
Stuart Lunn
Ampfarisaho Mulaudzi
Chaleen Muller
Deheshan Naidoo
Deshan Padayachee
Jean Roux
Jonathan Scott-Webb
Tlalagolo Sebesho
Financial Transaction Advisors
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Firm Individuals Role
Amy Smylie
Thato Tsotetsi
Morne Van Deventer
Chetana Yalamanchili
Thembakazi Sicwebu
Eleanor Smith
Nickson Kaputeni
Monica Dowie
Simon Venables
Nick Renshaw
Neil van Zyl
Samrat Roy
Fierdous Olivier
Jeremy Dore
Solomon Monama
Wessel Boshoff
Ernst & Young Rob Winchester
Dane Wilkins
Brunhilde Barnard
Dr Jim Fitzgerald
Grant Brennan
David Aggett
Melissa Blackford
Gayle Budlender
James Chapman
Priya Chiba
Rajeev Devalall
Suzanne Edwards
Emmanuel Essien
Benjamin Ford
Anisa Govender
Rob Hayward
Azra Joosab
Anel Jooste
Rahel Koshy
David Koudela
Moses Machingere
Cornelius Mdluli
Jayne Parello
Shakira Ramithlal
Carla Rooseboom
Kalveer Salh
Shannon Sass
Jed Shein
Peter Waller
Greg Weare
Financial Transaction Advisors
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Firm Individuals Role
Bronwen Sian
Byton Ndiweni
Lefa Mongaula
Atul Dama
Young Chara
Jean Blanckaert
Anell Venter
Nontle Vika
Pierre- Alexandre Griel
Ross Botes
Mott MacDonald Mark Barnard
Christos Kolliatsos
Clare Rhodes-James
John Porter
Iban Vendrell
James Dodds
Christian Bayer
Robert Collins
Mbuso Gwafila
Lisa Haynes
Robin Ingram
Chrysoula Michailidou
Ipeleng Mokgadinyane
Kelvin Nkole
Lekan Omuniwa
Tryfon Papalexandrou
Georgios Vantsiotsis
Inaki Perez
Technical Transaction Advisors
Novadays Jose Ignacio Cases Comyn
Technical Transaction Advisors
Tony Wheeler Consulting Dr Tony Wheeler Independent Technical Transaction Advisors
Ledwaba Mazwai Metja Ledwaba
Viola Ngwenya
Innocent Khumalo
Lee-Ann Botes
Thandeka Dlulane
Kelebogile Galeforolwe
Mmotlana Kgoadi
Sbusiso Maseko
Lebogang Mathebula
Naledi Mosikare
Wezi Phiri
Tiyani Sithole
Mmbhulaheni Sikhavhakhavha
Legal, BBBEE and Socio-Economic Transaction Advisors
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Firm Individuals Role
Webber Wentzel Brigette Baillie
Glenn Penfold
Zunaid Rawoot
Alexandra Sourvas
Mzukisi Kota
Garyn Rapson
Maria Kruger
Simonne Morley
Desiree De Oliveira
Kirsty Gilmour
Brenda Migwalla
Kearebetswe Modingwana
Rachel Jiyana
Mosidi Sibaya
Tess Peacock
Dennise Dlamini
Legal Transaction Advisors
Linklaters LLP Andrew Jones
John Pickett
Tessa Lee
Jack Coleman
Jonathan Cook
Andrew Reilly
Tom Shingler
Dominic Toomey
Independent Legal Transaction Advisors
Bowman Gilfillan Daryn Webb
Claire Tucker
Tammy Beira
Yashveer Ram
Ayanda Mubima
Sha'ista Kazee
Athi Jara
Gaby Sher
Simone Fourie
Lerato Molefe
Wandisile Mandlana
Jacqui Balkin
Bavesh Pillay
Stormme Gibson
Zanele Moloi
Legal Transaction Advisors
Edward Nathan Sonnenbergs
Pippa Reyburn
Nicola Buchanan-Clarke
Chris Ntuta
Lloyd Christie Carlyn Frittelli
Legal Transaction Advisors
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Firm Individuals Role
Busani Dhladhla Georgina Robinson Ngwako Raboshakga Brian Jennings Lebusa Meso Maryke Sher-Lun
Rethabile Mathabethe
Juliette Thirsk
Arthur Stephen Berrisford (subcontractor to ENS)
Roy Gluckman
17.2 A professional firm that is a member of the Transaction Advisors may advise a
Bidder, their Members, Lenders, Contractors or any other participant involved in
any Bid Response or be a member of any Bidder without the prior written consent
of the Department, provided that the Bidders and the relevant firms put
comprehensive and proper ring fencing mechanisms and rules in place in order
to manage the process and any conflicts of interest that may arise, and provided
further that the same individual may not be a member of the Transaction Advisors
team and also advise or be a member of a Bidder, Member, Lender or Contractor
or any other participant involved in any Bid Response.
17.3 If a Bidder has any concerns in respect of or becomes aware of any events or
circumstances that establish or imply that there has been a breach of any of the
provisions of clause 17.2, it is required promptly to notify the Department of such
concerns, events or circumstances in writing, giving the details of such concern,
events or circumstances and evidence supporting such concerns or establishing
such events or circumstances. In the absence of such written notification, a
Bidder shall be deemed to have agreed to and be satisfied with the arrangements
contemplated in clause 17.2.
18. Acknowledgment of the Law
18.1 The Bidder and each of its Members registered in South Africa are required to
submit with the Bid Response as part of its Stage 2 Bid Submission a declaration
stating, inter alia, that it is fully acquainted with the laws of South Africa (including
without limitation all statutes and regulations (on a national, provincial and
municipal level)) in relation to procurement and the subject matter of the Small
Projects IPP Procurement Programme, and that it will comply with such laws.
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The declaration required in respect of the Lead Member or Project Company is
included in Schedule 22 (Declaration of Bidder) of Volume 1, Part 3 (Stage 2 Bid
Submission Returnable Schedules) and the declaration required in respect of
each Member is included in Schedule 23 (Letter of Intent) of Volume 1, Part 3
(Stage 2 Bid Submission Returnable Schedules). The Bidder and each of its
Members incorporated or registered outside of South Africa are required to
submit with the Bid Response a declaration stating that they have engaged South
African counsel, which is fully acquainted with the laws of South Africa to advise
them in relation to the laws of South Africa (including without limitation all statutes
and regulations (on a national, provincial and municipal level)) in relation to
procurement and the subject matter of the Small Projects IPP Procurement
Programme. The declaration required in respect of the Lead Member is included
in Schedule 22 (Declaration of Selected Bidder) of Volume 1, Part 3 (Stage 2 Bid
Submission Returnable Schedules) and the declaration required in respect of
each Member is included in Schedule 23 (Letter of Intent) of Volume 1, Part 3
(Stage 2 Bid Submission Returnable Schedules).
18.2 Each Project Company and each Bidder will be solely responsible for satisfying
itself with respect to all the legal requirements for the Project and as to the legal
requirements applicable to the Project and the Project Company as specified in
this RFP, and shall have no claim against the Department or its Transaction
Advisors for any loss or damage it may suffer or incur by reason of any flaw, or
oversight or omission in relation thereto. This includes applying for, obtaining,
maintaining, renewing and adhering to all relevant Consents, permits, licences,
authorisations and exemptions required to implement that Bidder's Project.
Failure to do so will be at the entire risk of the Project Company and each Bidder,
and no relief will be given for errors, oversights or omissions of the Project
Company, a Bidder or its Members or of the Department.
18.3 After being selected as Preferred Bidder, a Preferred Bidder will be required to
obtain a generation licence in the name of its Project Company under the
Electricity Regulation Act from NERSA. Each Bidder will be solely responsible for
satisfying itself with respect to all the legal requirements for the issue of a
generation licence by NERSA in terms of the Electricity Regulation Act. Each
Preferred Bidder is required to provide the Department with a copy of their
application, as submitted to NERSA, for this licence within 14 (fourteen) days of
their appointment as a Preferred Bidder.
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19. Legal Personality of Bidder and Changes to a Bid Response
19.1 For the purposes of submitting a Bid Response, a Bidder may be either a Project
Company or a consortium. If the Bidder is a consortium, then the Project
Company that is to be incorporated by the consortium to be the Seller shall have
as its Shareholders, in the proportions stated in the Bid Response, the Members
of the consortium, or if any such Member will hold its ownership interest in the
Project Company through an intermediary entity which is still to be incorporated,
such intermediary entity. A Preferred Bidder shall be required to provide the
Department with such copies of the Project Company's Constitutional Documents
as the Department may request within the time-period specified by the
Department, following the date of establishment and incorporation of its Project
Company.
19.2 No change is permitted by a Bidder to any aspect of a Bid Response after
submission of a Bid Response in respect of a Bid Submission Phase. Bidders will
not be permitted to change any aspect of their Bid Response or their Project,
except as expressly permitted by the RFP, during the period between a Stage 1
Bid Submission Date and a Stage 2 Bid Submission Date, except for a change to
a Bidder's membership or structure and its Members (including but not limited to
a Change in Control) which change may only be undertaken with the prior written
consent of the Department. A change in any Bidder's membership or structure
will include a change to the percentage of membership in the Bidder by each
Member or the intended percentage of shareholding in the Project Company by
each Shareholder (including but not limited to a Change in Control) or a change
in the identity of the Bidder's Members, Contractors or Lenders.
19.3 No change by a Bidder to any aspect of a Stage 2 Bid Submission after
submission of a Stage 2 Bid Submission in respect of a Stage 2 Bid Submission
Date, will be permitted. No change is permitted by a Preferred Bidder to any
aspect of a Bid Response after submission of a Bid Response without the prior
written approval of the Department.
19.4 Any Selected Bidder and or Preferred Bidder wishing to change its Bid Response
must submit to the Department a written request to do so. Such request must set
out the facts and circumstances that have arisen since the relevant Bid
Submission Date that necessitated the request, together with all documentation,
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information, data and responses required to fulfil, in respect of such change, the
requirements in respect of the relevant Qualification Criteria in the RFP.
19.5 The Department reserves the right to require the Preferred Bidder to supply such
further information as the Department may, in its sole discretion, request with
regard to such change so as to enable the Department to consider fully the
impact of such change.
19.6 The Department may approve or decline to approve any request by a Selected
Bidder or a Preferred Bidder for a change to any aspect of a Bid Response in its
sole discretion. In exercising such discretion, the Department shall have regard
to all relevant factors, including whether the facts and circumstances
necessitating the request were, or ought reasonably to have been, foreseen by
the Selected Bidder or the Preferred Bidder at the relevant Bid Submission Date,
the nature and extent of the change and whether any such approval would be fair
to other Bidders who submitted a Bid Response in respect of the relevant Bid
Submission Phase.
19.7 The Department shall not be obliged to consider any extension of time in relation
to any stage of the Small Projects IPP Procurement Programme on account of
any change to any aspect of a Bid Response. Preferred Bidders are expected to
adhere to the Timetable as set out in clause 10 (Timetable for Small Projects IPP
Procurement Programme) of Part A of this RFP and should avoid including an
extension of time request in any change request submitted in terms of clause
19.3.
20. Authorisation of the Department and the Buyer
20.1 The Bidder, its Members, Contractors and Lenders and its Advisors are required
to satisfy themselves as to the authority of:
20.1.1 NERSA to issue a generation licence to each of the Project Companies of
the Preferred Bidders in accordance with the provisions of the Electricity
Regulation Act;
20.1.2 the Department to issue this RFP, undertake the Small Projects IPP
Procurement Programme of which this RFP forms part, and to undertake all
other actions envisaged by this RFP; and
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20.1.3 the Buyer and other relevant parties to enter into the PPA, the
Implementation Agreement, the Direct Agreement and the Connection
Agreements.
20.2 The Department shall not procure a legal opinion from any of its Transaction
Advisors in favour of any Bidder, Selected Bidder, Preferred Bidder, Members,
Contractors, Project Company or Lenders in relation to such authority or any
other aspect of this RFP or the Small Projects IPP Procurement Programme
envisaged by it. In this regard, copies of the relevant documents authorising the
Buyer to enter into the agreements to which it is a party, will be made available to
a Preferred Bidder upon written request by that Preferred Bidder.
21. Separate Bid Response for each Project and sharing of infrastructure
21.1 A Bidder shall be required to submit a separate Bid Response for each Project
and only one PPA (if that Bidder is appointed a Preferred Bidder) will be entered
into in respect of a Project and a Facility. In respect of Projects utilising landfill
gas Technology, the Bidder may submit one Bid Response that relates to a
Portfolio of Facilities and if appointed as a Preferred Bidder, that Bidder shall
enter into one PPA covering the whole Portfolio.
21.2 A Bidder shall be entitled to submit more than one Bid Response and may submit
different Bid Responses in respect of different and discrete Projects at each Bid
Submission Date.
21.3 In order to demonstrate that two (2) projects are separate, the Department would
expect to see at least the following:
21.3.1 separate Project Companies;
21.3.2 separate notarial leases; and
21.3.3 each Project Company to comply with the PPA and Connection
Agreements with respect to connection and metering.
21.4 Subject to clause 21.5, sharing of common infrastructure between Projects is
acceptable, provided that:
21.4.1 the common infrastructure is upstream of the turbine/s for the Project;
21.4.2 the common infrastructure is clearly defined;
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21.4.3 each Project has clear and strong contractual rights to use the common
infrastructure in a way that will not hamper their individual operation and
that these rights cannot be withdrawn from any Project Company as long
as the PPA is in place;
21.4.4 a clear contractual allocation, between the Project Companies, of
responsibility for operating and maintaining the common infrastructure
exists;
21.4.5 a clear contractual allocation, between the Project Companies, of
responsibility for funding the operation and maintenance exists; and
21.4.6 in the case where one Project Company has become insolvent, the other
Project Company must be able to retain access to the infrastructure and
must be protected so that it is not adversely affected by the insolvency of
the other Project Company.
21.5 However, sharing of common infrastructure downstream (namely export cable
and bay at the substation) will not be acceptable.
22. Confidentiality
22.1 Confidentiality by the Bidders
22.1.1 This RFP contains confidential information regarding the Small Projects IPP
Procurement Programme and or the Department. By collecting this RFP,
the Bidders agree that they:
22.1.1.1 will ensure that their Members, directors, officers, employees, agents,
Advisors, Lenders, Contractors and representatives use this RFP only
to evaluate the Small Projects IPP Procurement Programme and
prepare a Bid Response and for no other purpose; and
22.1.1.2 subject to the above clause, will not divulge or distribute any
information in respect of this RFP or pass on any copies of this RFP
without the prior written approval of the Department and will return
this RFP together with all copies thereof to the Department promptly
upon being requested to do so.
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22.1.2 Each Bidder agrees to maintain the confidentiality of all information
supplied to it in connection with the Project (whether in text, chart, picture,
electronic or other form), and agrees to keep its own Bid Response
confidential.
22.1.3 Bidders are required to provide the Department, together with their Stage 1
Bid Submission, with a copy of the Confidentiality Undertaking letter set out
in Schedule 16 (Confidentiality Undertaking) of Volume 1, Part 2 (Stage 1
Bid Submission Returnable Schedules), signed by a duly authorised
representative on behalf of the Bidder and each Member of the Bidder.
22.2 Confidentiality by the Department
22.2.1 The Department shall use its reasonable endeavours to keep all data and
details submitted by Bidders strictly confidential, save to the extent that the
Department is required to disclose such data and or details by applicable
law or order of a court of competent jurisdiction or a recognised stock
exchange or a Government department or agency. Should it be deemed
necessary to discuss any matter relating to any submission of any Bidder
with third parties (other than the Department's Transaction Advisors), the
necessary permission will be obtained from the Bidder concerned.
22.2.2 Notwithstanding the provisions of clause 22.2.1:
22.2.2.1 the Department shall be entitled to disclose all data and details
submitted by Bidders to the Transaction Advisors, National Treasury
and their officers, employees, agents, advisors and representatives
who are involved in the Project and the evaluation of the Bid
Responses; and
22.2.2.2 the Department shall be entitled to disclose all data and details
submitted by Bidders to the DPE, the DTI, NERSA, Eskom and
Parliament to the extent necessary; and
22.2.2.3 the Department shall be entitled to disclose to any person and in any
media, the name of any Bidder which has been designated as a
Preferred Bidder, and in respect of such Preferred Bidder, the Fully
Indexed and Partially Indexed Prices indicated in its Bid Response,
the Equivalent Annual Tariff calculated in respect of each such Price,
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and the Preferred Bidder’s Economic Development commitments, as
provided in its Bid Response in relation to clause 2.7 (Economic
Development Criteria and Evaluation) of Part C (Stage 2 Qualification
Criteria) of the RFP, as well as its Economic Development and Price
scores calculated pursuant to any evaluation in terms of Part D
(Stage 2 Evaluation Criteria) of the RFP, as well as that Preferred
Bidder’s ranking relative to other Preferred Bidders; and
22.2.2.4 the Department shall not be liable for any loss incurred or damage
suffered as a result of any disclosure of any information (confidential
or otherwise) of the Bidder. Accordingly, the Bidder, its Members,
Contractors, its Advisors and or its Lenders (if any) shall not have,
and hereby waive, any claim against the Department, its officers,
employees, servants, agents or advisors (including the Transaction
Advisors) arising out of the disclosure of any information, confidential
or otherwise.
23. Bid Security, Development Fee and Limitation on payment of Success Payments
23.1 Preferred Bidder Guarantee
23.1.1 Subsequent to the receipt of Stage 2 Bid Submissions to the RFP and
evaluation thereof, each Bidder which is provisionally informed of its
Preferred Bidder status will be required to lodge a new guarantee (the
"Preferred Bidder Guarantee") with the Department in an amount equal to
R15 000 (fifteen thousand rand) per MW of the Contracted Capacity of the
proposed Facilities for the Project in respect of which that Bidder has been
appointed Preferred Bidder. A Bidder which has been provisionally
informed of its Preferred Bidder status will be considered to have been
appointed by the Department as a Preferred Bidder once the Preferred
Bidder Guarantee has been submitted to the Department in accordance
with this clause.
23.1.2 Each Preferred Bidder Guarantee shall be:
23.1.2.1 an original, unconditional and irrevocable bank guarantee in the form
set out at Schedule 26 (Form of Preferred Bidder Guarantee);
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23.1.2.2 lodged with the Department within 15 (fifteen) Business Days of a
Bidder being notified of its Preferred Bidder status;
23.1.2.3 issued by a bank which is licensed to conduct banking business in
South Africa under the Banks Act, 94 of 1990 or a licensed short-term
insurer as contemplated in the Short-Term Insurance Act, 53 of 1998
and which has a South African rating of BBB or better by Standard &
Poor’s or equivalent; and
23.1.2.4 be valid and effective for the period from the date of issue of the
Preferred Bidder Guarantee until the earlier of (a) the expiry of the Bid
Validity Period (as extended from time to time) and (b) the later of the
date of payment of the Development Fee in accordance with clause
2.1 of the Implementation Agreement, and the date on which the
Preferred Bidder complies with the requirements of any
documentation or information request or any protocol issued by the
Department in relation to the submission to the Department of the
computer model which is to be attached to the Implementation
Agreement as Schedule 5 following Financial Close, provided that
once Financial Close has been reached on a Project (a) no longer
applies; and the Preferred Bidder Guarantee must remain valid until
the later of the events set out in (b).
23.2 Release of Guarantee
Unless the Department has notified a Bidder or Preferred Bidder in terms of
clause 23.3 that it intends calling on the Preferred Bidder Guarantee, the
Department will return a Preferred Bidder Guarantee within 15 (fifteen) Business
Days of its expiry.
23.3 Forfeiture of Guarantee
23.3.1 Without prejudice to any rights that a Preferred Bidder may have in law, the
Department may call on a Preferred Bidder Guarantee for a Facility more
than once (provided that the aggregate amount payable there under shall
not exceed the maximum amount of the Preferred Bidder Guarantee in
question) without notice or legal process, if the Preferred Bidder in
question:
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23.3.1.1 fails to comply timeously with any conditions contained in the letter of
appointment as a Preferred Bidder;
23.3.1.2 fails to pay the budget quotation fee within the time period specified
by the Department in this RFP or in the letter of appointment as
Preferred Bidder;
23.3.1.3 fails to sign the PPA, Implementation Agreement, Direct Agreement
and the Connection Agreements within the time period specified in
clause 10 (Timetable of Small Projects IPP Procurement Programme)
of this Part A (General Requirements, Rules and Provisions) in
respect of the relevant Stage 2 Bid Submission Phase, as such time
period may be extended by the Department on written notice to the
Preferred Bidder;
23.3.1.4 having signed the PPA, Implementation Agreement, Direct
Agreement and the Connection Agreements, fails to pay the
Development Fee in accordance with clause 23.4 or fails to comply
with the requirements of any information or documentation request, or
of any protocol issued by the Department including in relation to the
submission to the Department of the computer model which is to be
attached to the Implementation Agreement as Schedule 5 following
Financial Close;
23.3.1.5 fails to extend the term of the Preferred Bidder Guarantee in question
as required by the RFP;
23.3.1.6 is notified by the Department that its status as Preferred Bidder has
been revoked for any reason; or
23.3.1.7 breaches any law related to the Small Projects IPP Procurement
Programme contemplated by the RFP or is disqualified from the
Small Projects IPP Procurement Programme as a result of its actions
or omissions.
23.4 Development Fee
Each Project Company of a Preferred Bidder will be required to pay a
Development Fee to the Department in an amount equal to R230 000 (two
hundred and thirty thousand rand) per MW of the Contracted Capacity of the
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proposed Facilities for the Project in respect of which that Project Company has
signed a PPA. The Project Companies of the Preferred Bidders will be required
to pay the Development Fee to the Department within 6 (six) months of the date
of signature of the PPA and the Implementation Agreement. The Development
Fee payable by the Project Companies of the Preferred Bidders must be paid to
the Project Development Fund for Independent Power Producers Energy
projects, and will be used by the Department to cover the costs incurred as well
as the costs that may be incurred by the Department for the procurement of
Independent Power Producers. The Project Development Fund is neither
registered for income tax nor for VAT purposes and as such the Development
Fee shall not attract VAT and an invoice cannot be issued to the Bidders.
However, a notice of receipt will be issued to Bidders on payment of the
Development Fee.
23.5 Limitation on Success Payments
23.5.1 As the Government of a developing country, the Department has the
responsibility to provide access to fulfil basic needs such as affordable and
sustainable energy to all South Africans, including, and most importantly,
the poor. It is therefore of utmost importance for the Department and
NERSA to understand the potential impact of this Small Projects IPP
Procurement Programme on the South African consumers and the
economy.
23.5.2 Accordingly, the payment of Success Payments under and or in connection
with Projects developed under the Small Projects IPP Procurement
Programme shall be limited to an amount equivalent to 2.5% (two point five
percent) of Total Project Cost in aggregate. Bidders are required to
disclose and provide, at a Stage 2 Bid Submission Date, a reconciliation of
the Success Payments which cannot exceed more than 2.5% (two point
five percent) of the Total Project Cost in aggregate. The reconciliation must
include all the amounts constituting the Success Payments as well as what
portion of the Success Payments will be re-invested in the Project,
indicating exactly the point of participation (i.e. equity, debt or any other
instrument), and what portion will be paid out as cash. It is important to
indicate the net cash position and the net cash yield thereon.
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23.5.3 The Development Fee and all Success Payments must be separately
identifiable in the Financial Models. The Success Payments payable in
respect of the Project may only be the Success Payments detailed in the
Financial Models and declared in the Bid Response, and all Success
Payments must be detailed in the Financial Models and declared by the
Bidder and each of its Members in the Bid Response..
23.5.4 If a Bidder fails to satisfy the requirements of clause 23.5.2, or if the
Bidder's Success Payments are considered by the Department to be
disproportionately high, unjustifiable having regard to all relevant
circumstances, or gratuitous relative to the Total Project Cost, the Bidder
may fail the Value for Money assessment carried out in Part C (Stage 2
Qualification Criteria) of this RFP. Each Bidder and each of its Members
shall be required to submit, as part of their Stage 2 Bid Submission, a
declaration in respect of Success Payments, including that the Success
Payments do not equal more than 2.5% (two point five percent) of the Total
Project Cost in aggregate, which is attached to the RFP as Schedule 28
(Declaration in respect of payment of Success Payments) of Volume 1, Part
3 (Stage 2 Bid Submission Returnable Schedules), and an appendix
detailing the actual Success Payments and specified information relating
thereto, which is attached to Schedule 28 (Declaration in respect of
payment of Success Payments) as Appendix 28A.
24. Corrupt Gifts and Payments
24.1 The attention of Bidders is drawn to the Prevention and Combating of Corrupt
Activities Act, 12 of 2004.
24.2 None of the Bidders, its Members, its Contractors, the Lenders, any other
participant in a Bid Response or any of their agents or Advisors shall, commit an
offence in terms of the Prevention and Combating of Corrupt Activities Act, 12 of
2004, including directly or indirectly, offering or giving to any person in the
employment of the Department or any other Government official, who is directly
involved in the Project or the Small Projects IPP Procurement Programme, or any
of the Transaction Advisors, any gift or consideration of any kind as an
inducement or reward for appointing any Bidder as a Selected Bidder or a
Preferred Bidder, or for showing or omitting to show favour or disfavour to any
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Bidder, its Members, its Lenders or the Contractors in relation to the Small
Projects IPP Procurement Programme.
24.3 If any offence in terms of the Prevention and Combating of Corrupt Activities Act,
12 of 2004 is committed, the Department shall be entitled to disqualify (in terms
of clause 27 (Disqualification) the Bidder or Preferred Bidder which committed or
which is associated with any person who committed the offence, from the
relevant Bid Submission Phase and or to prohibit such Bidder, Preferred Bidder,
its Members, its Contractors, Lenders, any other participant in the relevant Bid
Response and their agents and Advisors from participating further in any part or
Phase of the Small Projects IPP Procurement Programme.
25. No Contract
This RFP does not constitute an offer to enter into a contractual relationship with any
Bidder, but is merely a solicitation of Bid Responses to enable the Department to select
the Selected Bidders and then the Preferred Bidders, in order to conclude an
Implementation Agreement, a PPA, Direct Agreement and the Connection Agreements
with the Buyer and the other relevant counterparties by the date specified in the table
under clause 10 (Timetable for Small Projects IPP Procurement Programme) of this
Part A (General Requirements, Rules and Provisions).
26. No Collusion
26.1 The attention of each of the Bidders, its Members, the Contractors as well as
their advisors and agents is drawn to Section 4(1)(b)(iii) of the Competition Act,
89 of 1998, which prohibits collusive bidding.
26.2 In submitting a Bid Response, each of the Bidders, its Members, its Lenders, the
Contractors and all other participants in any Bid Response certifies that:
26.2.1 its Bid Response has been prepared without consultation, communication
or agreement for restricting competition with any other Bidder, Member of
another Bidder or participant in another Bid Response, or any other
competitor or potential competitor;
26.2.2 its Bid Response has not been disclosed, nor will it be disclosed to any
other Bidder, Member of another Bidder or participant in another Bid
Response, or any competitor or potential competitor;
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26.2.3 no attempt has been made or will be made by it to induce any other person
not to submit or participate in a Bid Response for the purpose of restricting
competition; and
26.2.4 no attempt has been made or will be made by it to induce any other person
to alter the form or contents of its participation in any Bid Response for the
purpose of restricting competition.
26.3 If the Department becomes aware of or is of the opinion that any of the activities
detailed in clause 26.2 have been undertaken by any Bidder or any of its
Members, Lenders, Contractors or Advisors, the Department shall be entitled to
disqualify (in terms of clause 27 (Disqualification) of this Part A (General
Requirements, Rules and Provisions) of this RFP) such Bidder, its Members,
Lenders, Contractors or Advisors and to bar any or all of them from participating
further in the Small Projects IPP Procurement Programme.
27. Disqualification
Any material failure on the part of a Bidder to comply with any of the terms of this RFP,
read together with all Briefing Notes, may result in the Bidder, and other persons
associated in any relevant way with the Bidder, being disqualified from participating in
the relevant Bid Submission Phase and or from any part of the Small Projects IPP
Procurement Programme.
28. Loss of Selected Bidder and Preferred Bidder status
28.1 If a Selected Bidder fails to comply timeously with any conditions contained in the
letter of appointment as a Selected Bidder or breaches any law or requirement
applicable to any aspect of the Small Projects IPP Procurement Programme, the
Department will be entitled to terminate such Selected Bidder's status as
Selected Bidder.
28.2 If a Preferred Bidder:
28.2.1 fails to comply timeously with any conditions contained in the letter of
appointment as a Preferred Bidder;
28.2.2 fails to pay the budget quotation fee within the time period specified by the
Department in this RFP or in the letter of appointment as Preferred Bidder;
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28.2.3 fails to sign the PPA, Implementation Agreement, Direct Agreement and the
Connection Agreements within the time period specified in clause 10
(Timetable of Small Projects IPP Procurement Programme) of this Part A
(General Requirements, Rules and Provisions) in respect of the relevant
Bid Submission Phase, specified in a Briefing Note or as such time period
may be extended by the Department on written notice to the Preferred
Bidder;
28.2.4 fails to extend the term of the Preferred Bidder Guarantee in question as
required by the RFP; or
28.2.5 breaches any law applicable to any aspect of the Small Projects IPP
Procurement Programme;
the Department will be entitled to terminate such Preferred Bidder's status as
Preferred Bidder.
29. Contact Policy
29.1 Contact Policy prior to appointment as a Selected Bidder
29.1.1 Each potential Bidder at the time of first contact with the Department in
regard to the Small Projects IPP Procurement Programme, and each
Bidder in Schedule 13 (Stage 1 Bid Submission Covering Letter) of Volume
1 Part 2 (Stage 1 Bid Submission Returnable Schedules), shall give the
Project Officer the name and contact details, in writing, of the person whom
it appoints to undertake all contact with the Project Officer. Any change to
any details of that contact person shall be notified to the Project Officer in
writing. The Bidder may only communicate with the Department through
such person and the Department shall be entitled, at its sole discretion, to
disregard any communication from the Bidder that does not come from
such contact person and that does not go directly to the Project Officer in
the manner identified below.
29.1.2 All queries and requests for clarification in respect of this RFP are to be
addressed, in writing, to the Project Officer. The contact details of the
Project Officer are the following:
Maduna Ngobeni
Telephone: 012 444 4086
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E-mail: [email protected]
29.1.3 For the avoidance of doubt, no information or clarification may be
requested by the Bidder, its Members, the Contractors nor any of its
agents, Lenders or Advisors or any person participating in the relevant Bid
Response from any member of the Transaction Advisors (save for requests
to the Project Officer), Eskom (save in its capacity as the Distributor), the
employees of the Department or any other Government official who may be
associated with the Project (other than the Project Officer or National
Treasury), without the prior written consent of the Project Officer.
29.1.4 If a Bidder, its Members, the Contractors or any of its agents, Lenders,
other person participating in the relevant Bid Response or Advisors make
any such prohibited contact, the Department reserves the right, in its sole
discretion, to disqualify the Bidder, its Members, Lenders, Contractors,
other person from participating in that Bid Response or Advisors from any
further participation in the relevant Bid Submission Phase and or the Small
Projects IPP Procurement Programme.
29.1.5 A potential Bidder, Bidder, its Members, the Contractors or any of their
Advisors, Lenders or agents shall not be entitled to rely on any statements,
information or correspondence in respect of this RFP or the Small Projects
IPP Procurement Programme that is not contained in a Briefing Note or
made, given or issued by the Project Officer in writing and addressed to the
authorised representative of a Bidder or potential Bidder.
29.2 Contact Policy following appointment as a Selected Bidder and Preferred
Bidder
29.2.1 Each Bidder will be given a dedicated “SIPPID” e-mail address following
appointment as a Selected Bidder for all communication with the
Department. The same SIPPID e-mail address will apply to the Selected
Bidder if it is appointed as a Preferred Bidder. Once the Selected Bidder is
provided with this dedicated SIPPID e-mail address the Selected Bidder
must only correspond with the Department through this dedicated SIPPID
e-mail address and the Department shall be entitled, at its sole discretion,
to disregard any communication from the Selected Bidder or Preferred
Bidder that does not come to the dedicated SIPPID e-mail address.
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29.2.1 Prior to being provided with the dedicated SIPPID e-mail address the
Selected Bidder or Preferred Bidder should follow the contact policy
outlined in clause 29.1 (Contact Policy prior to appointment as a Selected
Bidder) of Part A (General Requirements, Rules and Provisions) of this
RFP above.
29.2.2 Selected Bidders or Preferred Bidders must maintain such internal
protocols as are necessary to ensure that only authorised representatives
make use of and communicate with the Department through the dedicated
SIPPID e-mail address, the Department shall be entitled to treat all such
communications as coming from an authorised representative of the
Selected Bidder or Preferred Bidder, as the case may be, and shall be
entitled to rely on such communications.
29.2.3 The Department shall communicate with Selected Bidders and Preferred
Bidders from the “Project Office” e-mail address, a Selected Bidder and or
Preferred Bidder shall be entitled to rely only on communications from the
Department from this e-mail address, subject to the reservation of all of the
rights of the Department in respect of the Small Projects IPP Procurement
Programme, as set out in this RFP, including those rights set out in
clause 6 (The Department’s Rights) of this Part A (General Requirements,
Rules and Provisions) of the RFP.
29.2.4 No information or clarification may be requested by a Selected Bidder or a
Preferred Bidder, its Members, the Contractors or any of its agents,
Lenders, other person participating in the relevant Bid Response or
Advisors from any member of the Transaction Advisors, Eskom (save in its
capacity as the NTC or Distributor), the employees of the Department or
any other Government official who may be associated with the Small
Projects IPP Procurement Programme, other through the dedicated IPPID
e-mail address and to the “Project Office” e-mail address.
29.2.5 If a Selected Bidder or a Preferred Bidder, its Members, the Contractors or
any of its agents, Lenders, other person participating in the relevant Bid
Response or Advisors makes any such prohibited contact, the Department
reserves the right, in its sole discretion, to disqualify (in terms of clause 27
(Disqualification) of Part A (General Requirements, Rules and Provisions)
of this RFP) the Selected Bidder or Preferred Bidder, its Members,
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Lenders, Contractors, other person participating in that Bid Response or
Advisors, from any further participation in the relevant Bid Submission
Phase and or from part or all of the Small Projects IPP Procurement
Programme.
30. Time for requests and clarifications
The Bidder may request clarification on any item contained within this RFP by not later
than 20 (twenty) Business Days before the relevant Bid Submission Date, after which
date the Department will not be obliged to enter into further correspondence with the
Bidder on questions related to that Bid Submission Phase of the Small Projects IPP
Procurement Programme.
31. Requests and responses to requests
31.1 All requests and queries from Bidders must be in writing sent to the Project
Officer by way of email in the form set out below. Each Bidder will be permitted
to send a maximum of 30 (thirty) questions or clarifications in respect of the Small
Projects IPP Procurement Programme per Project. Oral requests and queries will
not be entertained and will not receive a response.
No. From Category RFP document reference
Clause reference
Query Response
1.
31.2 The Department and its Transaction Advisors will endeavour in good faith to
respond to all reasonable written queries and requests for clarification raised by
the Bidders by way of written Briefing Notes distributed to all Bidders
simultaneously. In general, all such written queries and responses will be
circulated to all Bidders. The Department reserves the right not to answer or
respond to any particular question, query or request.
31.3 No response given to a question or request for clarification will have any status or
impact on the RFP, save to the extent that such response is subsequently
reflected in Briefing Notes to the RFP.
31.4 It is the responsibility of a Bidder to identify in its queries or requests for
clarification which information it deems to be confidential to its Bid Response and
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which it does not wish to have communicated to other Bidders, the Bidder must
give written grounds for requesting such information to be treated as confidential.
The Bidder’s attention is drawn to the requirements of the Constitution of the
Republic of South Africa, 108 of 1996; the PFMA; the Promotion of Access to
Information Act, 2 of 2000 and the Promotion of Administrative Justice Act, 3 of
2000, all of which are relevant to the determination whether the Department shall
be entitled to respect the Bidder’s request for confidentiality. The Department will
make that determination based on those requirements.
32. Bidders' Conferences
32.1 The Department will hold a conference with the Bidders prior to the First Stage 1
Bid Submission Date, and again before the Fourth Stage 1 Bid Submission Date.
These conferences will be held in the Republic of South Africa on the dates set
out in the table under clause 10 (Timetable for Small Projects IPP Procurement
Programme) or as notified to prospective Bidders by Briefing Note. Each
Bidders' Conference will be limited to the first 300 (three hundred) prospective
Bidders that have registered one or more Projects on the Small Projects IPP
Website by the due date for registration as set out in paragraph 9.6 and that have
paid the required fee to access the RFP. At the Department’s request, Bidders
will be asked to submit any written questions in relation to the Small Projects IPP
Procurement Programme and to confirm in writing to the Department, details of
the number and identity of their attendees.
32.2 The Department reserves the right, in its sole discretion, to require prospective
Bidders to attend any additional Bidders' Conferences.
33. Status of response
The Department and its Transaction Advisors will endeavour in good faith to respond to
all reasonable written queries and requests for clarification raised by the Bidders, but
reserve the right not to answer or respond to any question, query or request. No
response given to a question or request for clarification will have any status or impact
on the RFP, save to the extent that such response is subsequently reflected in Briefing
Notes to the RFP.
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34. Submission of Bid Response
34.1 Bid Responses will be required to be submitted to the Department on the
following Bid Submission Dates:
34.1.1 Stage 1 Bid Submissions in relation to the First Stage 1 Bid Submission
Date are to be submitted on 14 October 2013 by not later than 18h00.
34.1.2 Stage 1 Bid Submissions in relation to the Second Stage 1 Bid Submission
Date are to be submitted on 10 February 2014 by not later than 18h00.
34.1.3 Stage 1 Bid Submissions in relation to the Third Stage 1 Bid Submission
Date are to be submitted on 14 July 2014 by not later than 18h00.
34.1.4 Stage 1 Bid Submissions in relation to the Fourth Stage 1 Bid Submission
Date are to be submitted on 9 February 2015 by not later than 18h00.
34.1.5 Stage 2 Bid Submissions in relation to the First Stage 2 Bid Submission
Date are to be submitted on 14 April 2014 by not later than 18h00.
34.1.6 Stage 2 Bid Submissions in relation to the Second Stage 2 Bid Submission
Date are to be submitted on 23 March 2015 by not later than 18h00.
34.1.7 Stage 2 Bid Submissions in relation to the Third Stage 2 Bid Submission
Date are to be submitted on 1 June 2015 by not later than 18h00.
34.1.8 Stage 2 Bid Submissions in relation to the Fourth Stage 2 Bid Submission
Date are to be submitted on 21 March 2016 by not later than 18h00.
34.2 The Department shall notify all prospective Bidders of the Bid Submission Date
and address for delivery of Bid Responses, and other delivery instructions, for
each Bid Submission Date, at the appropriate time, by way of a Briefing Note.
35. Extension of Bid Submission Date
The Department may, in its sole discretion, extend one or more of the Bid Submission
Dates by issuing a Briefing Note in accordance with clause 43 (Briefing Notes and
Changes to Bid Process), in which case, all rights and obligations of the Department
and the Bidder that were previously applicable to the original Bid Submission Date shall
be applicable to the extended Bid Submission Date.
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36. Copies of Bid Response
36.1 Each Bid Response is required to be delivered by way of:
36.1.1 a hard copy consisting of one master Bid Response and 6 (six) copies
thereof; and
36.1.2 a soft copy consisting of one master disc and 6 (six) additional discs, and
the documents (with the exception of the Financial Models), contained
therein to be in Microsoft Word format, version 98 or later, save where the
document cannot be accessed by Microsoft Word, in which event the
document must be provided in an Adobe Acrobat PDF format. The
Financial Models are to be in Microsoft Excel format, version 2007 or later;
each marked as either 'master' or 'copy', as the case may be.
36.2 The sections of the Bid Response that respond to each of Part B (Stage 1
Qualification Criteria), Part C (Stage 2 Qualification Criteria), and Part D (Stage 2
Evaluation Criteria) of this RFP must be separate documents and must be
separately bound. See further at paragraph 52 (Format of the Bid Response) of
this Part A (General Requirements, Rules and Provisions) of the RFP for
additional detail on the required format for compilation, labelling and packaging of
the Bid Response.
37. Late and Incomplete Submissions
Bid Responses reaching the Department later than the specified cut-off time on the
original or extended Bid Submission Date (as the case may be) may, in the
Department's sole discretion, be rejected without further consideration.
38. Bid Validity
All Bid Responses constitute an irrevocable binding offer by the Bidder to the
Department. Bid Responses must remain valid and binding for 365 (three hundred and
sixty five) calendar days from the relevant Bid Submission Date ("Bid Validity
Period").
39. Extension of Bid Validity Period
If the Department requests the Bidder to extend the Bid Validity Period of its Bid
Response for any reason, the Bidder must issue its response to the Department in
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writing within the time-period specified in the applicable letter of request from the
Department. Should the extension be agreed to by the Bidder, the Bid Response may
not be varied but an extension of the Preferred Bidder Guarantee contemplated under
clause 23 (Bid Security, Development Fee and Limitation on payment of Success
Payments) to match any such extension, may be required.
40. Declaration of Bidder and Letter of Intent
The Lead Member of the Bidder or the authorised representative of a Bidder which is a
Project Company is required to sign the declaration in the form provided in Schedule
14 (Declaration of Bidder) of Volume 1, Part 2 (Stage 1 Bid Submission Returnable
Schedules) in respect of the Stage 1 Bid Submission, and Schedule 22 (Declaration of
Selected Bidder) of Volume 1, Part 3 (Stage 2 Bid Submission Returnable Schedules)
in respect of the Stage 2 Bid Submission, and each additional Member (in the case of a
Bidder consortium) or each Member (in the case of a Project Company Bidder) is
required to sign the letter in the form provided in Schedule 15 (Letter of Intent) of
Volume 1, Part 2 (Stage 1 Bid Submission Returnable Schedules) ) in respect of the
Stage 1 Bid Submission, and Schedule 23 (Letter of Intent) of Volume 1, Part 3 (Stage
2 Bid Submission Returnable Schedules) in respect of the Stage 2 Bid Submission,
certifying that:
40.1 the Member has studied the terms and conditions of the RFP; and
40.2 the Member has accepted that the terms and conditions of the RFP shall govern
the Small Projects IPP Procurement Programme.
41. Acceptance and Revision of the PPA, Implementation Agreement, Direct
Agreement and Connection Agreements
41.1 As part of a Bidder's Stage 2 Bid Submission, each Bidder, its Members and
Contractors will be required to confirm that they accept the terms of the
Implementation Agreement, the PPA, the Direct Agreement and the Connection
Agreements, and the annexes to these agreements. Confirmation of the
acceptability of the terms of the Implementation Agreement, the PPA, the Direct
Agreement and the Connection Agreements and the annexes to these
agreements must also be given by each of the Bidder's Lenders.
41.2 Copies of the PPA, the Direct Agreement, the Implementation Agreement and the
Connection Agreements and various annexes to these agreements, which may
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not be marked-up by Bidders, are contained in Volume 2 (Legal Agreements) as
Appendices A (PPA for each Technology), B (Direct Agreement),
C (Implementation Agreement), D (Eskom Distribution Agreement) and
E (Connection Direct Agreement).
42. Change in Legal Requirements
Bidders will note, from the PPA, that they are expected to inform themselves as to the
current laws in force in South Africa including the Codes, as well as the conditions of
the distribution licence of the relevant Distributor. In addition, they are expected to
review all bills and draft regulations and rules that have been published in the
Government Gazette and are required to assume that the substantive and procedural
provisions of such bills and draft regulations will not materially differ from those
enacted. If there is a change in any of the statutes, regulations, by-laws, orders or
directives having the force of law or in the law applicable to a Project during the period
commencing on the relevant Bid Submission Date and ending on the Effective Date of
the Implementation Agreement which materially prevents, hinders or delays the
relevant Project Company from undertaking that Project or in the performance of its
obligations in relation to that Project or which results in a material change in that
Project Company’s anticipated costs and or revenues and which would constitute
Unforeseeable Conduct in terms of the PPA, the Department, in its sole discretion, will
be entitled to grant the relevant Project Company the opportunity to amend its Bid
Response in order to deal specifically and only with the change in any law as set out
above, provided that the Bidder may not mark-up the PPA Implementation Agreement,
Direct Agreement or Connection Agreements, and the Department may accept or reject
such changes, in its sole discretion. If a Bidder elects not to amend its Bid Response,
but to withdraw its Bid Response from the relevant Bid Submission Phase, it shall be
entitled to do so and any guarantees provided by it in terms of clause 23 (Bid Security,
Development Fee and Limitation on payment of Success Payments) of the RFP shall
be returned to it without being called. The Bidder shall be entitled to submit a revised
or new Bid Response at the next Bid Submission Date, should a subsequent Bid
Submission Date occur.
43. Briefing Notes and Changes to Bid Process
Up to 10 (ten) Business Days prior to the relevant Bid Submission Date, the
Department may, for any reason, whether at its own initiative, or in response to a
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clarification requested by a Bidder, supplement, amend, vary or modify any part or
aspect of this RFP by the issue of Briefing Notes.
43.1 Issue of Briefing Notes
43.1.1 The Department may issue additional information regarding the RFP on an
ad hoc basis, which information shall be provided in the form of Briefing
Notes which are published on the Small Projects IPP Website.
43.1.2 Briefing Notes will be sequentially numbered and will indicate whether they
supplement, vary or amend any portion of the RFP.
43.1.3 Bidders shall be obliged to accept any amendments specified in Briefing
Notes. All Briefing Notes shall be deemed to be part of the RFP.
43.2 Influence of Briefing Notes
A Bidder must ensure that its Bid Response is prepared taking into account all
Briefing Notes issued by the Department.
44. Cost of Bidding
44.1 The Bidder shall bear all of its costs (of whatsoever nature) associated with the
preparation of its Bid Response and the development of the Project.
44.2 No Bidder (including any Selected Bidder or Preferred Bidder) shall have any
claim against the Department (including any claim for the costs of bidding) as a
result of:
44.2.1 not being selected as a Selected Bidder and or Preferred Bidder;
44.2.2 not entering into a PPA;
44.2.3 the Department re-allocating the MW between the various Technologies, in
its sole discretion, at any stage of the Small Projects IPP Procurement
Programme; and or
44.2.4 the Department altering or abandoning any part or all of the Small Projects
IPP Procurement Programme, including limiting the Small Projects IPP
Procurement Programme to the First Bid Submission Date only.
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45. Bidder's Due Diligence
The Bidder must perform an appropriate due diligence on all technical, legal, financial,
environmental, site planning, heritage and other matters relevant to the Project in
respect of which it is submitting its Bid Response so as to enable the Bidder to submit
a Bid Response that is based on verified and accurate information.
46. Inconsistencies
46.1 If a Bidder identifies any errors or inconsistencies between the various portions of
this RFP, the Bidder shall notify the Project Officer in writing prior to the date
referred to in clause 30 (Time for requests and clarifications), and the Department
will, if necessary, provide clarification to all Bidders by way of a Briefing Note.
46.2 To the extent that any inconsistency exists or shall exist between the terms of the
PPA, the Implementation Agreement and the provisions of this RFP, the terms of
the PPA and the Implementation Agreement shall prevail.
47. Incorrect or misleading information
47.1 The Department may:
47.1.1 Disqualify, in terms of clause 27 (Disqualification) of Part A (General
Requirements, Rules and Provisions) of this RFP, any Bidder who
knowingly or unwittingly provides any incorrect or misleading information in
response to this RFP or in response to any query or clarification question
addressed to the Bidder by the Department, from further participation in the
relevant Bid Submission Phase and or from further participation in part or
all of the Small Projects IPP Procurement Programme; and or
47.1.2 terminate any decision in respect of the selection of a Preferred Bidder, in
accordance with clause 28 (Loss of Selected Bidder and Preferred Bidder
status) of Part A (General Requirements, Rules and Provisions) of this
RFP, if such decision was based on any incorrect or misleading information
which the Bidder or its Members, Contractors, Lenders or Advisors or any
other participant in the relevant Bid Response and or agents knowingly or
unwittingly provided in response to this RFP or in response to any query or
clarification question addressed to the Bidder or Preferred Bidder by the
Department.
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48. Opening of Bid Responses
The Department will open the Bid Responses after the relevant Bid Submission Date
following receipt of the Bid Responses.
49. Bid Response Rejection
The Department shall be entitled to accept or reject any Bid Response, to waive any
failure to comply with the requirements set out in this RFP at any time.
50. Disputes relating to Bid Process
Each Bidder and each Member, Lender and Contractor or other person participating in
a Bid Response or otherwise in the Small Projects IPP Procurement Programme,
waives the right to bring proceedings in any forum outside of the Republic of South
Africa in relation to this Small Projects IPP Procurement Programme. This Small
Projects IPP Procurement Programme shall be governed by the laws of South Africa
and the Bidder and each of its Members, Lenders and Contractors and such other
participants consents and submits to the North Gauteng High Court of Pretoria having
exclusive jurisdiction in relation to it.
51. Selection of Preferred Bidders
The Department will send letters to the selected Preferred Bidders in relation to each
Bid Submission Phase, notifying them provisionally of their status, and requesting the
Preferred Bidders to submit the Preferred Bidder Guarantees pursuant to clause 23.1
(Preferred Bidder Guarantee) and ,inter alia, to enter into negotiations with their
Members, Contractors, Lenders and equipment suppliers to finalise their contractual
arrangements and Project Documents in order to conclude an Implementation
Agreement, a PPA, a Direct Agreement and Connection Agreements with the relevant
counterparties.
52. Format of the Bid Response
52.1 Contents of the Bid Response
52.1.1 The Bid Response must be complete, contain all the information required
by this RFP and deal with each and every issue raised in this RFP.
52.1.2 All pages of each separately bound section of each part of the Bid
Response, for example, response to Legal Criteria and Evaluation, must be
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numbered consecutively from beginning to end and a detailed index to the
entire Bid Response, including all pages of each separately bound section
or part, must be included in the Bid Response.
52.1.3 The Bid Response must adhere to the order set out below, to aid the
evaluation process:
52.1.3.1 In respect of a Stage 1 Bid Submission:
52.1.3.1.1 a copy of the Project information required to be submitted to the
Department pursuant to clause 9.8 of this Part A; and
52.1.3.1.2 response to Part B (Stage 1 Qualification Criteria) comprising:
52.1.3.1.2.1 an executive summary (not more than 20 (twenty) pages);
and
52.1.3.1.2.2 responses to individual headings in the order in which the
headings appear in Part B (Stage 1 Qualification Criteria)
of this RFP and in the form of the returnable schedules
that relate to the headings, if applicable;
52.1.3.2 In respect of a Stage 2 Bid Submission:
52.1.3.2.1 response to Part C (Stage 2 Qualification Criteria) comprising:
52.1.3.2.1.1 an executive summary (not more than 20 (twenty) pages);
and
52.1.3.2.1.2 responses under the individual headings in the order in
which the headings appear in clause 2 (Stage 2
Qualification Criteria) of Part C (Stage 2 Qualification
Criteria) of this RFP and in the form of the returnable
schedules that relate to the headings, if applicable; and
52.1.3.2.2 response to Part D (Stage 2 Evaluation Criteria) comprising:
52.1.3.2.2.1 an executive summary (not more than 20 (twenty) pages);
and
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52.1.3.2.2.2 responses under the individual headings in the order in
which the headings appear in Part D (Stage 2 Evaluation
Criteria) of this RFP and in the form of the returnable
schedules that relate to the headings, if applicable.
52.1.4 There are 2 (two) parts to a Stage 1 Bid Submission, namely, the Project
information required to be submitted to the Department pursuant to clause
9.10 of this Part A and responses to Part B (Stage 1 Qualification Criteria).
52.1.4.1 The documents comprising the response to clause 9.10 of this Part A
must be bound together and submitted to the Department on
registration of the Bid Response in accordance with clause 34
(Submission of Bid Response) of this Part A.
52.1.4.2 In respect of the response to Part B (Stage 1 Qualification Criteria),
the executive summary must be separately bound from the
documents comprising the responses to each Stage 1 Qualification
Criterion. The documents submitted in response to each Stage 1
Qualification Criterion (for example, Legal Criteria and Evaluation)
must be bound together. Therefore, each response in respect of a
Stage 1 Qualification Criterion must be separately bound. .
52.1.5 A Stage 2 Bid Submission will comprise of 2 (two) parts, namely, the
response in respect of Part C (Stage 2 Qualification Criteria), and the
response in respect of Part D (Stage 2 Evaluation Criteria).
52.1.5.1 In respect of the response to Part C, the executive summary must be
separately bound from the documents comprising the responses to
each Stage 2 Qualification Criterion. The documents submitted in
response to each Stage 2 Qualification Criterion (for example, Stage
2 Legal Criteria and Evaluation) must be bound together. Therefore,
each response in respect of a category of Stage 2 Qualification
Criterion must be separately bound.
52.1.5.2 In respect of the response to Part D (Stage 2 Evaluation Criteria), the
executive summary must be separately bound from the documents
comprising the responses to each Stage 2 Evaluation Criterion. The
documents submitted in response to each Stage 2 Evaluation
Criterion (for example, Price) must be bound together. Therefore,
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each response in respect of a category of Stage 2 Evaluation Criteria
must be separately bound.
52.2 Language of the Bid
The Bid Response and all documents forming part of the Bid Response shall be
in English. Any printed literature submitted by a foreign Bidder or Member with a
Bid Response may be in another language so long as it is accompanied by an
English translation (made by an accredited translator) of the entire document. For
the purpose of interpretation of the Bid Response, the English translation
provided shall govern. All correspondence and any other documentation and oral
communication exchanged between the Bidder and the Department shall be in
English. The provisions of this clause 52.2 of Part A (General Requirements,
Rules and Provisions) of this RFP shall not apply in respect of the documentation
referred to in clauses 2.3.1.1, 2.3.1.2, and 2.3.1.3 of Part C (Stage 2 Qualification
Criteria) of this RFP.
52.3 Currency of the Bid
All monetary amounts referred to in a Bid Response shall be in Rand, save to the
extent specifically permitted for in this RFP.
52.4 Identification and Sealing of the Bid Response
52.4.1 The Bidder shall write on the top right hand corner of the cover page of
each bound section forming part of the Bid Response, the following
information:
52.4.1.1 Tender reference number;
52.4.1.2 Name and Address of Bidder;
52.4.1.3 Bid Submission Date (namely, to which Bid Submission Phase the
Bid Response relates);
52.4.1.4 Type of Technology to which the Bid Response relates;
52.4.1.5 Original or copy number; and
52.4.1.6 Category of document (namely, the heading of the Part and clause or
volume of the RFP to which the document relates).
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52.4.2 The Bidder shall wrap each Bid Response (comprising the master and all
additional copies) separately, and mark the cover of the package with the
following details:
52.4.2.1 the title of the Small Projects IPP Procurement Programme as
detailed on the cover page of the RFP;
52.4.2.2 Tender reference number;
52.4.2.3 Bid Submission Date (namely, to which Bid Submission Phase the
Bid Response relates);
52.4.2.4 Name and Address of Bidder;
52.4.2.5 Type of Technology to which the Bid Response relates;
52.4.2.6 Whether the Bid Response relates to a Stage 1 Bid Submission or a
Stage 2 Bid Submission.
52.4.3 The master copy of the Bid Response in respect of each of the parts of the
Bid Response must be separately packaged within the sealed bid parcel
and clearly marked as 'master' and indicating the relevant part of the Bid
Response, for example, 'master - response to Volume 1, Part 2'. The
copies of the parts of the Bid Response must be separately packaged
within the sealed bid parcel. The Bid Response should not include any
loose paper. The complete Bid Response must be placed in a sealed
parcel and marked in accordance with this clause.
52.5 Correction of Errors
The complete Bid Response shall be without alterations, deletions or omissions,
except those to accord with instructions issued by the Department, or as
necessary to correct errors made by the Bidder in which case, such corrections
shall be made in clearly legible handwriting and initialled in black ink by the
person or persons signing the Bid Response. No corrections to the Bid Response
shall be made with any kind of correction fluid.
52.6 Signing of Bid
The Bid Response (in Schedule 13 (Stage 1 Bid Submission Covering Letter) to
Volume 1 Part 2 (Stage 1 Bid Submission Returnable Schedules) and Schedule
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21 (Stage 2 Bid Submission Covering Letter) to Volume 1, Part 3 (Stage 2 Bid
submission Returnable Schedules)) is to be signed by an authorised
representative of the Lead Member, or by the authorised representative of a
Bidder which is a Project Company.
52.7 Further Information
The Department reserves the right to seek additional information from any Bidder
in respect of its Bid Response, as it may, in its sole discretion, determine,
whether such information has been requested under this RFP or otherwise, and
may require the Bidder to make oral presentations for clarification purposes or to
present supplementary information, in respect of its Bid Response if so required
by the Department. The Department reserves the right to hold one or more
briefing or information sessions in respect of any or all of the Bid Responses.
The Bidder may be required to do a presentation of the salient features of its Bid
Response to the Department. If required by the Department, the Project Officer
will arrange a suitable date and venue with each affected Bidder.
52.8 Information Verification
52.8.1 Each Bidder (including its Members, Contractors, Lenders, Advisors and
other participants), in submitting a Bid Response, is deemed to consent to
and agree that the Department is entitled to:
52.8.1.1 perform a credit search in respect of such a Bidder, its Members,
Contractors and participants by accessing any credit bureau's
database; and
52.8.1.2 verify any information provided by a Bidder (including technical and
financial information) with third parties (including banks).
52.8.2 The Department shall be entitled to use any information and data obtained
from credit bureaux in respect of the evaluation of the Bidder's Bid
Response.